1

Parts I, II, III A, and IV of Judge Tjoflat’s opinion

constitute the opinion of the Court, because those parts are joined

by six of the ten judges participating in this decision. By

contrast, none of the other nine judges participating in this

decision have joined Parts III B and C of that opinion.

 2The nature and extent of the protection afforded the property

interest in a public education, the due process requirements

CARNES, Circuit Judge, concurring specially:

I concur in the holding that Title IX does not create a cause

of action against public school boards or officials for failure to

prevent or remedy student-student sexual harassment. In my view,

that holding is correct for essentially those reasons stated in

Parts I, II, III A, and IV of Judge Tjoflat’s opinion, and I join

those parts of it, which constitute the opinion of the Court.

However, for the reasons explained below, I do not join Parts III

B and C of Judge Tjoflat’s opinion, which express only his own

views.1

I.

The “Hobson’s choice” or “whipsaw liability” discussion in

Part III B of the opinion is based upon a fundamentally erroneous

premise. If school officials could be sued for failing to prevent

or remedy student-student sexual harassment, that part of the

opinion says, the potential liability would amount to a financial

incentive to punish the accused harassers, which would or could

render school officials impermissibly biased and require recusal.

Of course, a student does have a property interest in a public

education which is protected by the Due Process Clause of the

Fourteenth Amendment.2

 And, due process does require that a
attendant to its loss, depends upon the severity of the loss. In

Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975), the Supreme

Court held that, with any suspension of up to ten days, all the Due

Process Clause requires is for the student to “be given oral or

written notice of the charges against him and, if he denies them,

an explanation of the evidence the authorities have and an

opportunity to present his side of the story.” 419 U.S. at 581, 95

S. Ct. at 740; accord Arnold v. Board of Educ., 880 F.2d 305, 318

(11th Cir. 1989). The Supreme Court said in Goss that “[i]n the

great majority of cases the disciplinarian may informally discuss

the alleged misconduct with the student minutes after it has

occurred,” and “[w]e hold only that, in being given an opportunity

to explain his version of the facts at this discussion, the student

first be told what he is accused of doing and what the basis of the

accusation is.” 419 U.S. at 582, 95 S. Ct. at 740. The Court has

since explained that all Goss requires before a suspension is an

“informal give and take” in order to provide the student “the

opportunity to characterize his conduct and put it in what he deems

the proper context.” Board of Curators v. Horowitz, 435 U.S. 78,

86, 98 S. Ct. 948, 953 (1978) (quoting Goss, 419 U.S. at 584, 95 S.

Ct. at 741); accord, e.g., C.B. v. Driscoll, 82 F.3d 383, 386 (11th

Cir. 1996) (“The dictates of Goss are clear and extremely

limited.”). These “rudimentary precautions,” to use the

description from Goss itself, 419 U.S. at 581, 95 S. Ct. at 740,

are a far cry from a due process tribunal hearing attendant to some

property interest deprivations.

2

decision depriving the student of that property interest be made by

someone who does not have a pecuniary interest in having the

student suspended or expelled. To take an extreme example,

regardless of any other process afforded, due process would be

violated if a principal took a bribe from the complaining student’s

parents in return for suspending or expelling the alleged

wrongdoer. But it is an entirely different matter to suggest, as

Part III B of the opinion does, that a school official’s potential

liability to the complaining student if that official fails to take

legally required action amounts to a “financial incentive” which

renders that official “impermissibly biased” and requires recusal

from deciding what action, if any, is required in the
3

circumstances. As authority for that novel proposition, the opinion

cites only Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689,

1698 (1973). The Gibson decision provides no support for the

proposition, because it does not hold, or even imply, that an

official’s potential liability for failing to properly exercise

decisionmaking authority constitutes a “financial incentive” which

renders the official “impermissibly biased.” 

Gibson involved a state optometry board composed exclusively

of private practitioners who were in competition with corporate

employee optometrists. Those board members had a substantial

pecuniary interest in excluding from the market corporate employee

optometrists, who accounted for nearly half of all the practicing

optometrists in the state. The Supreme Court affirmed the district

court’s holding that the private practitioner’s pecuniary interest

in eliminating competition disqualified them from deciding whether

the practice of optometry by corporate employees as such

constituted unprofessional conduct justifying license revocation.

See 411 U.S. at 578-79, 93 S. Ct. at 1698. That holding does not

support the proposition that any time an official can be sued for

failing to respond properly to a complaint that official is

disqualified from making a decision about how to respond to the

complaint. 

If that suggested proposition were the law of this circuit --

and thankfully it is not -- no school official could ever

discipline a student for any alleged misconduct as a result of

another student’s complaint without violating the due process
4

rights of the disciplined student. The reason such an imposition

of discipline would violate due process is that such an official

would always have a financial incentive, under that view, to

believe the complaint in order to avoid a lawsuit filed by the

complainant. The ramifications of such a rule would extend to

discipline for any type of misconduct, because there is no

principled basis on which a distinction can be drawn between

discipline following a complaint about sexual harassment and that

following a complaint about any other type of misconduct.

Nor is there any principled basis by which such an automatic

disqualification rule could be confined to school settings. It

would also apply outside the Title IX context; for example, in jail

and prison settings. If one prisoner complains to a jailer or

warden about what some other prisoner has done to him, under Judge

Tjoflat’s view that official will have a financial interest in

avoiding a lawsuit from the complaining prisoner (alleging

deliberate indifference), and such an interest disqualifies the

official from making any disciplinary decision about the complaint.

So, not only would the disqualification rule be automatic, it also

would be universal. No one would be able to decide any

disciplinary matters in schools, in prisons, or in any other

setting within the purview of the Due Process Clause. All federal,

state, or local officials called upon to decide what to do in

response to one person’s complaint about another would have a

financial incentive to avoid a lawsuit, which would disqualify them
5

from making a decision. That cannot be the law, and it is not the

law.

Judge Tjoflat’s response to having these flaws in his

reasoning pointed out is contained in footnote 21 of his opinion,

which will reward close scrutiny. First, that footnote assures us

that we should not worry about the far-reaching ramifications of

the suggestion that potential liability equals disqualifying bias,

because this Court is holding that school officials have no

liability under Title IX for student-student sexual harassment.

Apparently forgotten is the assurance, in Part IV of the opinion,

that “Georgia tort law may indeed provide redress” for the very

same conduct. If a school official’s potential liability for not

acting properly is a disqualifying financial interest, it matters

not whether that potential liability is posed by Title IX or by

state tort law. The opinion does not, and logically cannot, suggest

otherwise. Instead, it adopts a head-in-the-sand approach which

ignores everything but Title IX, as though that were the only

potential source of liability for school officials who are called

upon to decide what to do about student-student sexual harassment

complaints.

With its head comfortably in the sand, the opinion also

ignores entirely the obvious implications of its proposition for

student-student disputes involving allegations of misbehavior other

than sexual harassment. Part of the quotidian business of teachers

and principals is resolving disputes in which one student alleges

another has threatened, hit, stolen from, or otherwise mistreated
6

him or her. Some of those disputes pose potential liability for the

teacher or principal who fails to act. For example, a school

official who fails to take appropriate action to protect a student

from a threatened thrashing at the hands of another student may

have to answer in a state court tort action. Under the reasoning

contained in Part III B of the opinion, that potential liability

would prevent any school official from deciding what to do about

such a complaint, because that official’s potential liability to

the complaining student would amount to a disqualifying financial

bias. A careful reading of the opinion reveals that it fails to

explain why that result would not necessarily follow from its

suggested reasoning.

As to settings outside the school context, footnote 21 of the

opinion offers two responses to this criticism. First, it simply

denies SS “We suggest nothing of the kind” SS that its proposition

about potential liability equaling disqualifying bias would have

any application outside the schoolhouse. That ipse dixit assertion

has as little reasoning behind it as the proposition itself. The

opinion fails to offer any reason why the automatic bias theory it

suggests would not apply in non-school contexts, because there is

no reason. The right to an unbiased decision maker is a rudiment

of due process, which is as applicable outside schools as within

them.

Apparently realizing that the ipse dixit approach will not

shield the naked illogic of its position from view, the opinion

attempts to camoflauge the problem with talk of immunity. “Don’t
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worry,” we are told, officials in non-school settings have

“immunity from suit” which removes any potential liability for

failing to decide for the complaining party, and any financial

incentive to favor that party disappears along with the potential

liability. The thinnest stripe of the attempted camouflage is the

opinion’s reference to judicial immunity. We are not talking about

judges. We are talking about the myriad of federal, state, and

local non-judicial officials who are regularly called upon to

decide what to do in response to one person’s complaint about

another. Jailers, wardens, and other corrections officials are but

a few examples. These people are not judges. They do not enjoy

judicial immunity.

Even so, the opinion says, there is qualified immunity. There

are three problems with the assertion that the availability of

qualified immunity distinguishes non-school officials from school

officials by removing any threat of lawsuit by a complaining party

dissatisfied with an official’s resolution of a complaint outside

the school setting. First, qualified immunity is not absolute.

Second, qualified immunity does not shield officials from liability

grounded on state law. Third, and most obviously, the doctrine of

qualified immunity is the same for school officials as for nonschool officials. If that doctrine shields non-school officials

from threat of lawsuit sufficiently to remove any disqualifying

financial incentive to decide for a complainant, it does exactly

the same for school officials. Thus, with its talk of qualified

immunity, Part III B of the opinion has succeeded in reaching
8

around and biting itself in the back. If what the plurality

opinion says about the due process implications of qualified

immunity is true, then the opinion has disproven the very

proposition it is seeking to defend.

II.

Part III C of Judge Tjoflat’s opinion attempts to establish

that student-student sexual harassment is such a widespread and

extensive problem that a different holding in this case would

impose massive liability upon school officials and boards. In its

words, agreeing with appellant’s theory of liability would give

rise to “thousands of lawsuits.” Tjoflat Opinion at n.25. The

factual premise of that reasoning is based entirely upon one survey

report. See American Ass’n of Univ. Women Educ. Found., Hostile

Hallways: The AAUW Survey on Sexual Harassment in American Schools

(1993) (hereinafter “AAUW Survey Report”).

The AAUW Survey Report was not the subject of an evidentiary

hearing in the district court, nor has it been examined in a

hearing in any other court insofar as we know. Neither party to

this appeal even mentioned the survey in the briefs; it was

discussed only in one amicus brief. In general, we should be

reluctant to incorporate into our reasoning the results of a survey

that has not been examined critically or tested in a trial or

evidentiary hearing, the time-honored and proven methods our system

of justice uses to determine material facts.
9

Beyond the general problems with using surveys in judicial

decision making, there are specific reasons why employment of this

particular survey for the purpose Judge Tjoflat uses it in Part III

C of his opinion is ill-advised. That purpose, of course, is to

show student-student sexual harassment is so rampant that if a

cause of action existed for it the resulting flood of litigation

would inundate our public school systems, or at least school

officials would have a basis for fearing that result SS the basis

being the survey.

The first reason we ought to be especially cautious about such

a use of this particular survey is that its purported findings are,

in the words of the sponsors of the survey: “startling,” and for

some “the results will be surprising and shocking.” Id. at 2. The

reason for such descriptions is that it is difficult to believe

that 65 percent of all eighth through eleventh grade students have

been sexually harassed by other students, and that half of all

female and male students in those grades are self-professed sexual

harassers. We ought to be reluctant to accept as fact, or assume

that school officials would accept as fact, such “surprising and

shocking” statistics based upon a single survey of only a tiny

fraction of one percent of the total number of students in four

grades. 

Even a cursory look at the survey report gives more reason to

be dubious about the opinion’s use of the report. The survey asked

students how often “[d]uring your whole school life” has anyone

“when you did not want them to” done any of the following things,
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and it then provided a list of behavior the survey defined as

sexual harassment. See id. at 5. Some behavior on that list

clearly constitutes sexually harassing behavior of the most serious

type. But included in the list is other behavior that is less

serious and far less likely to lead to complaints and litigation,

which is what Judge Tjoflat uses the survey to predict (or posits

that school boards will use it to predict). For example, included

in the survey’s definitional list of sexual harassment was any

instance in which another student: “Made sexual comments, jokes,

gestures, or looks;” or “[s]pread sexual rumors about you;” or

“[s]aid you were gay or lesbian.” Id. at 5. Remember that a

single unwelcome instance of such activity, during the student’s

entire school life, renders that student a victim of sexual

harassment for purposes of the survey. 

A student who has ever been looked at by another student in an

unwelcome way perceived to be sexual is defined by the survey to be

a sexual harassment victim. Any student ever called gay or lesbian

is also a sexual harassment victim in the survey’s view. Any time

unwelcome rumors are spread about a student having any type of

sexual activity (presumably including kissing) with another

student, those students are sexual harassment victims as the survey

defines it. To take one final example of how the total incidence

of “sexual harassment” reported overstates legally actionable

incidents of sexual harassment, consider that the survey definition

includes incidents in which someone “[f]lashed or ‘mooned’ you.”

Id. At 5. Suppose that a student at a school function (which the
11

survey defines to include school sporting events and field trips)

“moons” all the students in attendance, or all those from a rival

school. A single episode of that misbehavior SS which is not nice

and certainly should not occur, but has been known to happen SS

could make sexual harassment victims, as the survey defines the

term, out of scores or even hundreds of students. Yet, such an

incident is extremely unlikely to result in litigation against the

school.

It is also worthy of note that the survey asked students

whether the behavior it defined as sexual harassment had happened

to them “[d]uring your whole school life.” Id. at 5. Therefore,

the 65 percent figure reflects those who have experienced that

behavior at any time during any school year of their life. It does

not purport to be annual data.

Finally, Part III C of the opinion fails to point out that the

survey also asked the students if any of them who had been sexually

harassed, as that term was defined in the survey, had told a

teacher about the experience. Only 7 percent of the sixty-five

percent had. See AAUW Survey Report at 14. Whatever the reasons

for not reporting such behavior to a teacher, the failure to do so

in all but the rarest instances has obvious implications for the

existence of causes of action against schools or the likelihood of

actual litigation.

The opinion attempts to deflect criticism about misuse of the

survey by suggesting that while the opinion’s author does not

necessarily think that the survey is a valid indicator of how much
12

student-student sexual harassment occurs, school boards might think

that the survey is and reject federal funding as a result of it.

With all due respect, there is no reason to believe that school

boards would be less likely than federal judges to see the flaws in

such an interpretation of the survey. School boards know more

about what is going on in their schools than we do, and they can be

expected to critically examine any survey before using it as a

basis for turning down federal funding for their schools. Rather

than hiding behind speculation about how school board officials

might interpret the survey, the opinion ought to face up to the

flaws in its suggested use of the survey. 

Upon its release, the sponsors of the survey stated that they

were “confident that the results of this survey will become a focal

point on the agendas of policy makers, educators, and others

concerned with the education of America’s children.” Id. at 21.

Their confidence about how the survey would be used might be

undermined by Part III C of Judge Tjoflat’s opinion. More

importantly, we are not policymakers. We do not have agendas. We

ought to leave this survey to those who do.

III.

The parts of Judge Tjoflat’s opinion that neither I nor any

other member of the Court except its author joins, Parts III B and

C, are not necessary to the opinion’s essential reasoning or to the

holding of this case. Neither the language of Title IX nor its

legislative history indicates that Congress intended to saddle
13

school boards and officials with liability for student-student

sexual harassment, and school boards had no notice that such

liability would result from accepting Title IX funds. For those

reasons, I do join the holding of the Court and Parts I, II, III A,

and IV of Judge Tjoflat’s opinion.