UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50791

_____________________

CANUTILLO INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellant,

versus

MARTHA LEIJA and JERRY LEIJA

as next friends of ROSEMARIE LEIJA, a minor,

Plaintiffs-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ November 16, 1996

Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This interlocutory appeal by the Canutillo Independent School

D istrict turns on whether, under Title IX of the Educat ion

Amendments of 1972, 20 U.S.C. §§ 1681 et seq.

, a school district is

strictly liable for its teacher’s sexual abuse of a student; and,

if not, whether another teacher’s being told about the abuse is

sufficient notice to the sch ool district for possible liability

under some other standard. We R EVERSE the denial of the school

district’s motion for judgment as a matter of law on the Title IX

claim and REMAND

.- 2 - I.

The school district is located in Canutillo, Texas, and

receives federal financial assistance. At the Canutillo Elementary

S chool, Rosemarie Leija was assigned in 1989 to the second-gr ade

homeroom class of Pam Mendoza and the physical educatio n/health

class of Tony Perales.

Perales’ classes were a part of the daily curriculum. Once a

week, he taught health, which consisted primarily of showing movies

to his students in a darkened classroom. Throughout the 1989-90

school year, Perales sexually molested Leija during these showings.

One of Leija’s classmates testified that, during this same time

period, she was also molested in a similar manner by Perales.

In early 1990, Leija and the other student told Mendoza about

some of Perales’ actions. Mendoza spoke with each of the girls

individually and told them to avoid Perales. Mendoza talked to

Perales about the accusations, but she did not advise anyone else,

such as the superintendent or principal. Later that spring, Leija

told her mother that Perales had been touching her. L eija’s mother

discussed the matter with Mendoza at one of the regularly scheduled

parent-teacher conf erences, and Mendoza told her that she would

l ook into the matter. Leija’s mother did not discuss this with

anyone other than her husband. According to Leija, Mendoza

confronted her after the conference and threa tened her with

“trouble” if she was lying about her accusation.- 3 -

Afterwards, Leija did not speak with anyone about the abuse

until she began counseling sessions in 1993. Her parents, as next

friends, then filed this action against the school district (CISD)

and Perales under Title IX and under 18 U.S.C. § 1983. Summary

judgment was granted CISD on the § 1983 claim.

During the trial of the Title IX claim, at the close both of

Leija’s case and of all the evidence, CISD moved for judgment as a

matter of law on the basis that, inter alia, Leija had not produced

evidence of discriminatory intent on its part. Both motions were

denied, and the special interr ogatories given the jury premised

CISD’s liability instead on a “negligent agent” theory :

Did Pam Mendoza, as an agent of [CISD], know

or, in the exercise of reasonable care, should

she have known, of the sexual harass ment or

abuse by Tony Perales against Rosemarie Leija?

Did Pam Mendoza take the steps a reasonable

person would have take n under the same or

similar circumstances to halt the sexual

harassment or abuse by Tony Perales against

Rosemarie Leija?

The jury returned a verdict for Leija, awarding $1.4 million in

compensatory damages.

Post-verdict, CI SD again sought judgment as a matter of law

and moved, in the alternative, for remittitur. Among other things,

it again maintained that Le ija had not shown intentional

discrimination on its part. In denying the motion, the district

court ch anged course and held, in a most comprehensive opinion,- 4 -

that its instructions on liability were unnecessary because CISD

was instead strictly liable for Perales’ actions. 887 F. Supp.

947, 953 (W.D. Tex. 1995). However, because the court was

concerned that Title IX strict liability might expose school

districts to “potential insolvency”, it held also that damages

should be limited to expenses for medical and mental health

treatment and for special education. Id

. at 956. And, because the

damages special interrogatory was not so limited, the court treated

CISD’s remittitur motion as one for a new trial on damages and

granted it. I d

. at 957. The court later certified its order under

28 U.S.C. § 1292(b) for immediate appeal, and this court granted

CISD leave to do so.

II.

Although CISD presents several points, this interlocutory

appeal turns on whether the liability standard under Title IX for

teacher-student sexual abuse is strict l iability; and, if it is

not, whether the notice to Mendoza, a teacher, is sufficient to

hold the school district liable. In so deciding, we review d e novo

the denial of CISD’s motion for judgment as a matter of law, using

the same standards as those applied by the district court. E.g.,

Conkling v. Turner

, 18 F.3d 1285, 1300 -01 (5th Cir. 1994). Such

judgment is appropriate if, after viewing the record in the light

most favorable to the nonmovant, there is no “legally sufficient- 5 -

evidentiary basis” for a reasonable jury to have found for the

prevailing party. Id. (quoting F ED

. R. C IV

. P. 50(a)).

Title IX provides in relevant part: “No person in the United

States shall, on the basis of sex, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal financial

assistance....” 20 U.S.C. § 1681(a). There is an implied right of

action under Title IX in favor of victims of discrimination on the

basis of sex, Cannon v. Un iversity of Chicago , 441 U.S. 677, 709

(1979), and monetary damages may b e awarded for its intentional

violation, Franklin v. Gwinnett County Pub. Sch.

, 503 U.S. 60, 74-

76 (1992).

For purposes of this appeal, we assume that discrimination “on

the basis of sex” includes sexual abuse of a student by a teacher.

See id. at 75. CISD, unlike the a mici

, does not contend otherwise.

See Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 477 (5th Cir.)

(en banc) (Jones, J., dissenting) (citing Franklin for proposition

that school accepting federal funds “render[s] itself potentially

liable” to Title IX claims for teacher-student sexual harassment),

cert. denied sub nom. Lankford v. Doe , 115 S. Ct. 70 (1994). But

see Franklin

, 503 U.S. at 62-63 (limiting ques tion presented to

“whether the implied right of action under Title IX

... supports a

claim for monetary damages”); Rowinsky v. Bryan Indep. Sch. Dist.

,

80 F.3d 1006, 1011 n.11 (5th Cir. 1996) (“[A]ny language in- 6 -

Franklin regarding teacher-student sexual harassment is pure

dictum .”), cert. denied

, 65 U.S.L.W. 3033 (U.S. Oct. 7, 1996) (No.

96-4).

A.

The district court was the first to adopt strict liability as

the standard for school distric t Title IX liability for teacherstudent s exual abuse. Three other standards have been utilized.

We summarize them briefly before addressing, and rejecting, strict

liability.

1.

The three approaches generally followed are those used for

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et

seq .; for Title VII of that Act, 42 U.S.C. § § 2000 et seq

. ; and

pursuant to Restatement (Second) of Agency § 219.

a.

CISD urges that Leija must prove that the school district

itself engaged in intentional sex-based discrimination. Its basis

is the statement in Cannon that Title IX was “patterned” after

Title VI. Cannon , 441 U.S. at 694. As the Court noted, “the two

statutes use identical language to describe the benefited class”,

id. at 694-95. Title VI provides: “No person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving- 7 -

Federal financial assistance.” 42 U.S.C. § 2000d. Both statutes

a lso utilize a similar “administrative mechanism” to terminate

financial assistance to recipients “engaged in prohibited

discrimination”. Cannon , 441 U.S. at 695-96.

Moreover, our court recently described Title VI as the “model”

for Title IX. Rowinsky , 80 F.3d at 1012 n.14. And, in Chance v.

Rice University

, 984 F.2d 151, 153 (5th Cir.), reh’g denied

, 989

F.2d 179 (5th Cir. 1993), a district court’s application of Title

VI standards to a Title IX claim was not h eld erroneous. C hance

,

however, involved a claimof discrimination in the promotion and

compensation of professors at a university, not teacher-student

sexual abuse; furthermore, an imputed liability standard was not at

issue. 984 F.2d at 152.

To receive compensa tory damages, a Title VI plaintiff must

prove discriminatory intent. G uardians Ass’n v. Civil Serv. Comm’n

of the City of New York , 463 U.S. 582, 584 (1983); id

. at 608 n.1

(Powell, J., concurri ng); s ee Franklin

, 503 U.S. at 70.

C onsequently, CISD asserts that it cannot be liable absent proof

that it actually participated in Perales’ discriminatory conduct.

See, e.g.

, Seamons v. Snow

, 864 F. Supp. 1111, 1117 (D. Utah 1994),

aff’d in part and rev’d in part

, 84 F.3d 1226 (10th Cir. 1996);

R.L.R. v. Prague Pub. Sch. Dist. I-103

, 838 F. Supp. 1526, 1534

(W.D. Okla. 1993).

b.- 8 -

Leija also disclaims the district court’s strict

liability/limited damages approach. Leija asserts that Title VII

liability principles should gove rn instead. The basis for this

approach is the Franklin Court’s reliance on Meritor Savings Bank,

FSB v. Vinson

, 477 U.S. 57 (1986), a Title VII case, in stating

that

[u]nquestionably, Title IX placed on the

Gwinnett County Schools the duty not to

discriminate on the basis of sex, and “when a

supervisor sexually harasses a subordinate

because of the subordinate’s sex, that

supervisor ‘discriminate[s]’ on the basis of

sex.” M

eritor Savin gs Bank, FSB v. Vinson,

477 U.S. 57, 64 (1986). W e belie ve the same

rule should apply when a teacher sexually

harasses and abuses a student.

Franklin , 503 U.S. at 75.

Under Title VII, the standard for an employer’s liability for

an employee’s conduct depends on the type of sexual harassment at

issue. Courts have held an employer strictly liable for “ q uid pro

quo ” harassment (receipt of a benefit conditioned on submission to

sexual conduct). S ee Meritor

, 477 U.S. at 70-71; Henson v. City of

Dundee

, 682 F.2d 897, 910 (11th Cir. 1982). However, for “hostile

environment” harassment (sexual conduct which, inter alia

, creates

an intimidating working environment), an employer is liable only if

it knew, or should have known, of that conduct and did not take

appropriate remedial action. N ichols v. Frank

, 42 F.3d 503, 508- 9 -

(9th Cir. 1994); Hall v. Gus Constr. Co.

, 842 F.2d 1010, 1016 (8th

Cir. 1988).

The district court instructed the jury only on a hostile

environment theory; it refused to instruct on a quid pro quo

theory. We agree that the abuse in issue is the former, not

latter, type. Under these principles for hostile environment

claims, CIS D could be liable if, i nter alia

, it had actual or

constructive notice of Perales’ actions. S ee Kinman v. Omaha Pub.

Sch. Dist.

, 94 F.3d 463, 469 (8th Cir. 1996); Preston v.

Commonwealth of Va. ex rel. New River Community College

, 31 F.3d

203, 206-07 (4th Cir. 1994).

c.

As a variation on r espondeat superior

, the Restatement

(Second) of Agency § 219 provi des a third possible liability

standard: a master is not liable for his servant’s torts committed

outside the scope of employment unless “the master was negligent or

reckless”. R estatement (Second) of Ag ency § 219(2)(b) (1957).

Under this standard, and because the sexual abuse was not within

the scope of Perales’ employment as a teacher, CISD would be liable

f or his actions only if it failed to use reasonable care in

preventing, or failing to remedy, a problem that it knew, or should

have known, existed. Hirschfeld v. New Mexico Corrections Dep’t

,

916 F.2d 572, 577 (10th Cir. 1990) (interpreting § 219 in Title VII

case); see Rosa H. v. San Elizario Indep. Sch. Dist.

, 887 F. Supp.- 10 -

140, 142-43 (W.D. Tex. 1995); Hastings v. Hancock

, 842 F. Supp.

1315, 1319 (D. Kan. 1993).

2.

Rejecting the foregoing approaches, the district court adopted

strict liability as the Title IX liability stan dard for teacherstudent sexual abuse. 887 F. Supp. at 954. As noted, it did not do

so until after the jury rendered its extremely large compensatory

damages verdict. I d

. at 948. No court had previously adopted this

approach in imputing liability to a school district for a Title IX

hostile environ ment claim. Moreover, subsequent to the district

court rendering its opinion, only one other court has followed

suit. Bolon v. Rolla Pub. Sch. , 917 F. Supp. 1423, 1427-28 (E.D.

Mo. 1996). That court also certified its order for interlocutory

appeal. Id. at 1433-34.

In the case at hand, the district court opined that a student

would have difficulty meeting any of the usual liability standards

because most sexual abuse “occurs or at least is attempted under

cover of secrecy”; and that, “unless the acts of the employees of

the district are fully and strictly imputed to the district, Title

IX becomes potentially inoperative.” 887 F. Supp. at 953. Because

of this proof problem, and because “the risk of harm is better

place d on a school district than on a young student”, the court

held CISD strictly liable for Perales’ sexual abuse of Leija. I d.- 11 -

at 955. For the following reasons, we reach the opposite

conclusion.

Our court explained recently that “precedent strongly

suggests” that Congress enacted Title IX pursuant to its Spending

Clause power, U.S. C ONST

. art. I, § 8, cl. 1, and not § 5 of the

Fourteenth Amendment. R owinsky

, 80 F.3d at 1012 n.14. Although

the Franklin Court had ear lier refused to decide this issue,

Franklin

, 503 U.S. at 75 n.8, our court gave cogent reasons for

interpreting Title IX in the same way Title VI is interpreted, as

Spending Clause l egislation, including the identical language of

the two statutes, the fact that Title IX was modeled after Title

VI, and the Supreme Court’s traditional hesitance to “attribut[e]

Congressional intent to act under its authority to enforce the

Fourteenth Amendment.” R owinsky

, 80 F.3d at 1012 n.14 (citing

Pennhurst State Sch. & Hosp. v. Halderman , 451 U.S. 1 (1981)).

In Pennhurst, 451 U.S. at 17, the Court described the typical

spending power statute as a contract: “[I]n return for federal

funds, the States agree t o comply with federally imposed

conditions”. But, Congress must be clear and “unambiguous[ ]”

about any conditions or obligations it is imposing on the recipient

of such funds. I d

. As the P ennhurst Court explained, “By

insisting that Congress speak with a clear voice, we enable the

States to exercise their choice knowingly, cognizant of the

consequences of their participation.” Id. Thus, in Pennhurst , a- 12 -

general statement of legislative findings characterized as a “bill

of rights” in the statute was insufficien t to impose enforceable

obligations on participants in a Spending Clause program. Id. at

18-27.

Assuming, arguendo

, that Title IX is a Spending Clause

statute, Congress must be unambiguous in expressing to school

districts the conditions it has attached to the receipt of federal

funds. Nothing in the statute, however, places a school district

on notice that it will be strictly liable for its teachers’

criminal acts. In fact, the conditions Congress imposed on Title

IX recipients are limited to those anti -discrimination factors

found in its sparse wording; there is no mention of liability

standards, such as intent, actual knowledge, gross negligence, or

lack of due diligence, let alone the imposition of liability

without fault. 20 U.S.C. § 1681.

It would be difficult to conclude that Title IX, which

contains no whisper of strict liability, creates this enforceable

obligation, whereas the provision at issue in Pennhurst

, which was

part of the text of the statute, did not. Pennhurst , 451 U.S. at

13-14, 18-27. And, if strict liability were the standard, it

cannot be that a school district that chooses to accept federal

monies can be said to have made a “knowing[ ]” choice, “cognizant

of the consequences of [its] participation”, when the statute

governing the receipt of those funds is completely silent about a- 13 -

financially devastating consequence of that participation. Simply

put, strict liability is not part of the Title IX contract.

In addition, there is no sound policy reason to hold a school

district financially accountable, through strict liability, for the

criminal acts of its teachers. As noted, in recasting an argument

frequently made in support of imposing strict liability on product

manufacturers, s ee, e.g., Greenman v. Yuba Power Products, Inc

. ,

377 P.2d 897, 901 (Cal. 1963); Escola v. Coca-Cola Bottling Co.

,

150 P.2d 436, 440-41 (Cal. 1944) (Traynor, J., concurr ing), the

district court explained that “the risk of harm is better placed on

a school district than on a young student.” 887 F. Supp. at 955.

But, along this same line, one reason courts and state

legislatures have so allocated risk t o product manufacturers is

because they are better able to spread liability cost s among

consumers by raising the price of their products. E .g.

, Escola

,

150 P. 2d at 441 (Tra ynor, J., concurring). A school district

should not be required to pe rform a comparable task, even if it

could. A school district’s “products” are its students; there is

no “price” to raise. Instead, public schools are funded typically

by a combination of federal and state funds and property taxes

levied by the local gov erning body. We refuse to impose the

necessity of a “Title IX assessment” in order to spread the risk of

million-dollar verdicts. As horrible a crime as child abuse is, we

do not live in a risk-free society; it contorts “public policy” to- 14 -

suggest that communities should be held financially responsible in

this manner (strict liability) for such criminal acts of teachers.

Continuing with this product manufacturer analogy, another

reason behin d product manufacturer strict liability is that the

manufacturer is in a better position than a consumer to search for

and discover defects in design or manufacture. S ee

, e.g., Escola

,

150 P.2d at 440-41 (Tra ynor, J., concurring). But, there is no

product for a school district to design, test or inspect. Again,

its “products” are its students; they are not the offending item.

And, just as is a product manufacturer, a school district is

limited in what it can prev ent through careful screening and

monitoring of its employees, both before and afte r hiring them.

Human beings are inherently unpredictable, making it impossible for

a school district to discover potential h uman “defects” the way,

for example, that a manufacturer, for its products, can design

against defects, or inspect for them on a n assembly line. In

addition, the Constitution and state and federal law limit the

extent to which a school district can examine, inquire about, or

investigate its employees and their backgrounds and

characteristics.

Likewise, as the district court noted, teacher-student sexual

abuse is conducted in s ecret, making it difficult, if not

impossible, to detect without being told about it. Obviously,

immediate and adequate notice is one of the best means of stopping- 15 -

abuse and removing ( an d convicting ) the abuser. In fact, as a

matter of public policy, it may well be that requiring knowledge by

the school district, often acquired by being told about such abuse,

as a condition to recovery of damages will result in much quicker

and greater protection not only to the person being abused and

providing notice, or on whose behalf it i s given, but will also

better protect or otherwise benefit those who may then be

undergoing abuse from that, or another, teacher. This additional

benefit applies equally to those who might be otherwise subject to

abuse in the future from that teacher, as well as from others.

The district court suggests tha t strict liability will

“heighten[ ] the vigilance of the district and cause[ ] employees

at all levels of the system to be alert to the problem.” 887 F.

Supp. at 955. It is difficult to believe, following lengthy and

nationally publicized child abuse trials, the otherwise heightened

awareness of child abuse, and the increased filings of Title IX

actions for student abuse, that any school district or teacher is

not already extremely alert to the problem of teacher-student

sexual abuse. But in any event, as explained, such vigilance,

alertness, and awar eness are insufficient to shield a school

district from potential financial ruin under the district court’s

strict liability approach, even with the limited damages it couples

to that standard. Strict liability converts the school district

from being the educator of children into their insurer as well.- 16 -

And, if it is their insurer, it is most arguable that its role as

educator

-- needed now more than ever

-- will suffer, and suffer

most greatly.

It is true that the Supreme Court has found an implied

private cause of action in Title IX, even though the st atute is

silent. C annon

, 441 U.S. at 709. And, it is also true that the

Cou rt discerned an intent on the part of Congress to provide all

appropriate remedies for a Title IX violation, although the statute

makes no mention of them. F ranklin

, 503 U.S. at 71-75. But,

strict liability is a step too far; we will not take it.

B.

As discussed infra

, and based on the facts in this case

(especially because the only notice was to another teacher), it is

not necessary now to move beyond our rejection of strict liability

and adopt a liability standard fo r Title IX cases of the type at

hand. Leija’s Title IX claim fails under each of the three types

commonly applied.

1.

Of course, if the appropriate standard were analogous to Title

VI, even notice, absent direct involvement by the school district,

would not im pute liability to the district. S ee R.L.R.

, 838 F.

Supp. at 1534. It is undisputed that there was no such involvement

by CISD. Therefore, the Title IX claim would fail under this

standard. We turn to how it would fare under a liability standard- 17 -

akin to Title VII or § 219 of the Restatement (Second) of Agency

.

(Needless to say, the brevity of this Title VI analogy, especially

as compared to the length of the discussion that follows, should

not be understood to mean that, for purposes of this opinion, we

view it as having less validity than those other two standards.)

2.

Under the standard for Title VII or § 219, a school district

would be liable if it knew, or should have known, of the teacher’s

conduct and failed to ta ke remedial action. S ee DeAngelis v. El

Paso Mun. Police Officers Ass’n

, 51 F.3d 591, 593 (5th Cir.) (Title

VII), cert. denied

, 116 S. Ct. 473 (1995); Hirschfeld

, 916 F.2d at

577 (§ 219). Restated, under either standard, actual or

constructive notice, i nter alia , would constitute a sufficient

basis for Title IX liability. Both CISD and Leija agree on this

point.

a.

Therefore, under either standard, the question then becomes:

To whom must such notice be given? CISD asserts that, at the

least, a management-level emplo yee must have notice of the

teacher’s actions. Leija counters that, as long as the student

reports the actions to someone “appropriate” to receive the

complaint, the notice element has been satisfied.

In the Title VII context, our court has explained that an

employer has actual notice of harassment when an employee complains- 18 -

to “higher management”. W altman v. International Paper Co.

, 875

F.2d 468, 478 (5th Cir. 1989); see also Nash v. Electrospace Sys.,

Inc.

, 9 F.3d 401, 404 (5th Cir. 1993) (discussing failure of

plaintiff to complain to “company hierarchy”). A Title VII

plaintiff can show c onstructive notice by “showing the

pervasiveness of the harassment, which gives rise to the inference

of knowledge or constructive knowledge”. W altman

, 875 F.2d at 478

(quoting Henson , 682 F.2d at 905). (As discussed infra, there is

no evidence that, at the time of the assaults on Leija, Perales’

conduct was so pervasive that a reasonable juror could infer that

CISD had knowledge of the situation.)

Other circuits have adopted a similar definition for Title VII

actual notice. Nichols , 42 F.3d at 508 (“The proper analysis for

employer liability in hostile environment cases is what managementlevel employees knew or should have known....”); H all

, 842 F.2d at

1015-16 (explaining that employer had actual notice because foreman

was told of harassment); Katz v. Dole , 709 F.2d 251, 255-56 (4th

Cir. 1983) (describing personnel that put employer on notice of

harassment as “superviso ry”); H enson

, 682 F.2d at 905 (“The

employee can demonstrate that the employer knew of the harassment

by sh owing that she complained to higher management....”).

Likewise, under § 219, courts require that a plaintiff notify

management-level employees before an employer can be said to have- 19 -

actual knowledge. S ee Hirschfeld

, 916 F.2d at 577 (citing EEOC v.

Hacienda Hotel , 881 F.2d 1504, 1516 (9th Cir. 1989)).

There is no reason to define actual notice differently in the

Title IX context. In fact, the one Title VII case cited by Leija

to support her “appropria te employee” contention described the

personnel that the plaintiff notified as “supervisory”. L lewellyn

v. Celanese Corp.

, 693 F. Supp. 369, 380 (W.D.N. C. 1988).

Moreover, it makes little sense, on the one hand, to make liability

contingent, inter alia , on whether the employer (school district)

takes “prompt remedial action”, see DeAngelis

, 51 F.3d at 593, yet,

on the other hand, define “employer” so broadly as to include

personnel who have no authority to take such action. Therefore,

before the school district can be held liable under Title IX for a

teacher’s hostile environment sexual abuse, som eone in a

management-level position must be advised about (put on notice of)

that conduct, and that person must fail to take remedial action.

For purposes of this appeal, we need not decide, and thus

leave for another day, the question of whether the appropriate (or

lowest level) management-level person to be notified is a Title IX

coordinator, vice-principal, principal, superintendent, or school

bo ard member. B ut cf. Rowinsky

, 80 F.3d at 1021 (Dennis, J.,

dissenting) (student-student sexual harassment is actionable under

Title IX if “ board h ad knowledge of the harassment and failed to

take appropriate corrective action”) (emphasis added). Obviously,- 20 -

that question is strongly linked to the facts and circumstances,

including applicable state law, of each case. It i s clear,

however, that, to even be gin to qualify as “management-level”, a

person must have some authority over employees, including, perhaps,

the power to hire, fire, or discipline. This condition stems from

case law and the language of Title VII itself.

Title VII defines an “employer” to include all “agent[s]”, but

not all “employees”, of the employer. 42 U.S.C. § 2000e(b). The

Supreme Court focused on this distinction in Meritor Savings Bank,

477 U.S. at 72 : “ Congress’ decision to define ‘employer’ to

include ‘any agent’ of an employer

... surely evinces an intent to

place some limits on the acts of employees for which employers

under Title VII are to be held responsible.” Our court is well

aware of this distinction. S ee Moham v. Steego Corp

., 3 F.3d 873,

876 (5th Cir. 1993), cert. denied , 510 U.S. 1197 (1994).

Courts have interpreted the term “agent” to mean someone who

“serves in a supervisory position and exercises significant control

over ... hiring, firing, or conditions of employment”. Sauers v.

Salt Lake County

, 1 F.3d 1122, 1125 (10th Cir. 1993) (quoting

Paroline v. Unisys Corp.

, 879 F.2d 100, 104 (4th Cir. 1989) vacated

in part

, 900 F.2d 27 (4th Cir. 1990); s ee also Pierce v.

Commonwealth Life Ins. Co. , 40 F.3d 796, 803 (6th Cir. 1994). In

fact, the Fourth Circuit has explained, “[The agent] need not have

ultimate authority to hire or fire to qualify as an employer, as- 21 -

long as he or she has significant input into such personnel

decisions”. P aroline v. Unisys Corp.

, 879 F.2d 100, 104 (4th Cir.

1989).

This definition of “employer” (including agents) is synonymous

with the understanding our court had of “employer” in DeAngelis v.

El Paso Municipal Police Officers Ass’n , when it listed as one of

the elements of a Title VII plaintiff’s prima facie case for

hostile environment that “the employer knew or should have known of

the haras sment and failed to take prompt remedial action”.

De Angelis , 51 F.3d at 593. Accordingly, the term “highermanagement personnel” includes only those individuals with some

degree of job-related authority over other employees.

Thus, in Nash v. Electrospace System, Inc.

, our court

explained that an employer did not know, and could not have known,

of the harassment “until [the plaintiff] complained to those with

authority to address the problem ”. Nash , 9 F.3d at 404 (emphasis

added). And, in Hall v. Gus Construction Co. , the Eighth Circuit

found that a construction company had actual notice of a hostile

environment when a foreman had witnessed and received c omplaints

about the sexually harassing conduct. Hall , 842 F.2d at 1016.

In sum, if Title VII or § 219 principles are applicable for

T itle IX liability, the school district does not have actual

knowledge of hostile environment sexual harassment until someone- 22 -

with authority to take remedial action is notified. Again, it may

well be that that someone must be a member of the school board.

b.

In any event, it is clear tha t Mendoza, the teacher put on

notice, did not have the requisite authority. At the elementary

school, she served only in the capacity of a classroom teacher.

Mendoza did not serve on the school board or as a superintendent,

assistant superintendent, principal, or assistant-principal. And,

the CISD student handbook designated the assistant superintendent

,

not M endoza, as the CISD Title IX coordinator (and the person to

receive student complaints). Mendoza simply had no job-related

authority over Perales or, for that matter, any other teacher. As

a f inal indicator, we note that, when asked at trial whether she

was an appropria te person to receive a student’s complaint of

sexual abuse and harass ment, Mendoza invoked her Fifth Amendment

rights.

c.

Accordingly, we a pply these assumptions and conclusions to

this record to determine whether the sc hool district had the

requisite actual or constructive notice. As stated, we hold that

it did not.

Leija was not in Perales’ gym/health class after the 1989-90

school year; and, in early 1991, during Leija’s third grade year,

she and her family left Canutillo. Perales, however, continued to- 23 -

sexually abuse his students. In October 1990, a parent complained

to the assistant-principal at the element ary school that Perales

had sexually molested her daughter. The allegation was

investigated, and Perales was warned about his interaction with the

students. In February 1991, four more girls complained of sexual

abuse, this time to the princ ipal, who promptly reported the

incidents to the CISD superintendent. CISD immediately suspended

Perales. Law enforcement officials investigated the matter, and

Perales was subsequently indicted and convicted of sexual abuse of

a child, whereupon CISD terminated him.

Therefore, concerning the time frame during which the sexual

abuse of Leija occurred, the record reflects the following:

neither Leija nor her mother told anyone at the school besides

Mendoza (a teacher) what Perales was doing; Mendoza was not at

management-level

-- she did not have any authority over Perales or

other authority, including to take the requisite remedial action,

so that the notice to her did not constitute notice to CISD; no

member of the school board, the superintendent, the assistant

superintendent, the principal, the assistant-principal or any other

management-level personnel were notified of Perales’ actions; and,

there was no evidence that his conduct was then so pervasive that

a reasonable juror could conclude that CISD “should have known” of

the abuse. On these facts, CISD had neither actual nor

constructive notice of Perales’ sexual abuse of Leija

.

Consequently, for the liability standards akin to Title VII or §219, as with that d iscussed earlier for Title VI, the Title IX

claim was insufficient as a matter of law.

III.

For the foregoing reasons, the Title IX claim fails.

(Accordingly, we do not address the damages issues.) Therefore, we

REVERSE the denial of CISD’s motion for judgment as a matter of law

on that claim, and REMAND for entry of judgment in favor of the

school district.

REVERSED and REMANDED

DENNIS, Circuit Judge, dissenting:

I respectfully dissent.

First, I disagree with the majority’s failure to consider and

follow the substantial jurisprudential and regulatory

developments that have taken place under Title IX since this court

visited this fast changing legal area in Rowinsky v. Bryan ISD, 80

F.3d 1006 (5th Cir. 1996). I am persuaded by the new developments

that the substantiv e standards that have evolved under Title VII

should be applied in actions for monetary damages under Title IX

b ased on either the sexual harassment of a student by a school

employee or the sexual harassment of a student by his or her peers.

Second, I could have agreed with the majority ’s result had

this case presented only the issue of whether a complaint of

hostile environment sexual harassment was made to management-level- 25 -

school employees. However, the certified order appealed from

fairly includ es other issues that should be addressed by this

court, viz.

, (1) whether the complaints by the second grader and

her mother to her primary or home room teacher about her sexual

molestation by her male health and physical education teacher

constituted sufficient notice because the school district failed to

provide an adequate complaint and grievance procedure as required

by Title IX regulations but instead issued a school booklet

directing students and parents to direct complaints to the child’s

primary or home room teacher; (2) whether a reasonable trier of

fact could have found from the evidence that the male teacher’s

conduct constituted quid pro quo harassment, as well as hostile

environment harassment, of the female second grader, for which the

school district is liable regardless of whether it knew or should

have known or approved of the harassment.

Finally, applying the recently developed sexual harassment

precepts, I conclude that (1) the pla intiffs-appellees presented

sufficient evidence from which a reasonable trier of fact could

c onclude that the school district had notice of the sexual

harassment, which it failed to take adequate remedial steps to

arrest and prevent, and therefore could be held liable for damages

caused by hostile environment discrimination; and (2), in the

alternative, a reasonable trier of fact could find that the male

t eacher’s conduct constituted quid pro sexual harassment of the- 26 -

female second-grade student and, accordingly, if judgment is not

rendered at this level for the plaintiff-appellees, the case should

be remanded for further proceedi ngs on the quid pro quo issue.

Moreover, in either event, th is court should hold that the

trial court exceeded its authority in denying the plaintiff plenary

damages and in imposing restr ictions upon their recovery not

provided by law.

JURISPRUDENTIAL DEVELOPMENTS

Title IX provides that “no person in the United States shall,

on the basis of sex, ... be subjected to discrimination under any

education program or activity receiving Federal financial

assistance....” 20 USC § 1681 (a). In F ranklin v. Gwinnett County

Pub. Sch.

, 503 U.S. 60 (1992), the Supreme Court recognized that

Title IX affords an implied private cause of action for money

damages in cases of intentional sexual discrimination; and that a

teacher’s sexual harassment and abuse of a student because of the

student’s sex constitutes sexual discrimination. I d.

, 503 U.S. at

74-75, (citing Meritor Savings Bank, FSB v. Vinson

, 477 U.S. 57, 64

(1986)).

In reviewing cl aims of sexual discrimination brought under

Title IX, whether by students or employees, courts have generally

adopted the same legal standards that are applied to such claims

under Title VII. S tudent Claims : Kinman v. Omaha Public School

District, 94 F.3d 463, 467-68 (8th Cir. 1996); Seamons v. Snow, 84- 27 -

F. 3d 1226, 1232 (10th Cir. 1996); Davis v. Monroe County Bd. of

Educ., 74 F.3d 1186 (11th Cir. 1996), vacated, pending reh’g en

banc ; Murray v. New York Univ. Col lege of Dentistry, 5 7 F.3d 243

(2d Cir. 1995); Brown v. Hot, Sexy and Safer Productions , 68 F.3d

525 (1st Cir. 1995); Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.

1994); Roberts v. Colo. State Bd. of Agriculture, 998 F.2d 824,

832 (10th Cir.), cert. denied , ---U.S. ---, 114 S.Ct. 580 (1993);

Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, (W.D.Mo.

1995); Sharif by Salahuddin v. NYS Ed. Dep., 709 F.Supp. 345

(S.D.N.Y. 1989); Moise v. Temple Univ. Sch. Med., 613 F.Supp. 1360

(E.D.Pa. 1985), aff’d

, 800 F.2d 1136 (3d. Cir. 1986); Employee

Claims : Brine v. Univ. of Iowa, 90 F.3d 271, 275-6 (8th Cir. 1996);

Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir.

1988); Preston v. Comm. of Va., 31 F.3d 203 (4th Cir. 1994); Mabry

v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d

311 (10th Cir. 1987), cert. denied

, 484 U.S. 849 (1987); cf. Doe v.

Taylor

, 975 F.2d 137, 149 (5th Cir. 1992)(“[T]here is no meaningful

distinction between the work environment and school environment

which would forbid such d iscrimination in the former context and

tolerate it in the latter.”)

The circuits addres sing the elements of a student’s sexual

harass ment claim based on hostile educational environment agree

t hat the plaintiff must prove: (1) that the student belongs to a

protected group; (2) that the student was subject to unwelcome- 28 -

sexual harassment; (3) that the harassment was based on sex; (4)

that the harassment was sufficiently severe or pervasive so as to

a lter the conditions of the student’s education and create an

abusive educational environment; and (5) that some basis for

institutiona l liability has been established. K inman v. Omaha

Public Sch. Dist.

, 94 F.3d 463, 467-68 (8th Cir. 1996); Seamons v.

Snow

, 84 F.3d 1226, 1232 (10th Cir. 1996); D avis v. Monroe County

Bd. of Educ.

, 74 F.3d 1186 (11th Cir. 1996), vacated, pending reh’g

en banc ; Murray v. New York Univ. College of Dentistry, 57 F.3d 243

(2d Cir. 1995).

A majority of those circuits have held that in order to

establish the fifth element-- viz

., that there is a basis for the

educational institution’s liability--Title VII principles apply:

(1) The plaintiff must show that the school knew or should have

known of the harassment in question and failed to take prompt

remedial action; and (2) the student can satisfy the “knew or

should have known” requirement by demonstrating that adequate

information concerning the harassment was communicated to

managem ent-level school employees or by showing that the

pervasiveness of the harassment gives rise to a reasonable

inference of knowledge or constructive knowledge. K inman v. Omaha

Sch. Dist., supra; Davis v. Monroe County Bd. of Educ.

, supra.;

Murray v. New York Univ. College of Dentistry

, supra

. Accord Doe

v. Petaluma Ci ty Sch. Dist., 1 996 WL 432298 (N.D.Cal. 1996);- 29 -

Patricia H. v. Berkeley Unified Sch. Dist. , 830 F.Supp. 1288

(N.D.Cal. 1993); B urrow v. Postville Community Sch. Dist.

, 929

F.Supp. 1193 (N.D. Iowa 1996); Bruneau v. South Kortright Central

Sch. Dist.

, 935 F.Supp. 162 (N.D.N.Y. 1996); Linson v. Trustees of

the Univ. of Penn.

, 1996 WL 479532 (E.D.Pa.). The court in S eamons

v. Snow, supra

, disposed of the plaintiff’s claim solely on the

basis of his failure to allege facts constituting sexual

discrimination without addressing the notice issue.

That Title VII standards should be applied in analyzing a

Title IX sexual harassment claim by a student is also evident from

the decisions of the Supreme Court . Although the Court did not

expressly address the issue in Franklin v. Gwinnett County Public

Schools, 503 U.S. 60 (1992), in holding that Title IX authorizes

awards of compens atory damages to Title IX plaintiffs generally,

the Court invoked Title VII auth ority and principles. F ranklin

involved a high school student’s allegations that she had been

sexually harassed and assaulted by a teacher and that school

officials with actual knowledge of the teacher’s misconduct had

failed to intervene. I d.

, 503 U.S. at 64-65. In rejecting the

argument that the specific language of Title IX did not give

educational institutions sufficient notice of their liability for

damages for such intentional d iscrimination, the F ranklin Court

stated:- 30 -

U nquestionably, Title IX placed on [such institutions] the

duty not to discriminate on the basis of sex , and “when a

supervisor sexually harasses a subordina te because of the

subordinate’s sex, that supervisor ’discriminate[s]’ on the

basis of sex.” M eritor Sav[ings] Bank, FSB v. Vinson, 477

U.S.57, 64 (1986). We believe the same rule should apply when

a teacher sexually harasses and abuses a student . Congress

surely did not intend for federal moneys to be expended to

suppor t the intentional actions it sought by statute to

proscribe.

Id.

, 503 U.S. at 75. The Court’s citation to M eritor Savings Bank

,

a Titl e VII case, in support of F ranklin’s central holding

indicates that, in a Title IX suit for gender discrimination based

on sexual harassment of a student, an educational institution may

be held liable under standards similar to those applied in cases

und er Title VII. S ee Murray v. New York Univ. College of

Dentistry, 57 F.3d at 248-49.

Furthermore, the Supreme Court has consistently, both before

and after Franklin, used the term “intentional” to dis tinguish

disparate treatment discrimination, including hostile environment

discrimination, from unintentional disparate impact discrimination.

Thus, by stating that money damages may be awarded only for

intentional violations of Title IX, the Supreme Court did not

intend to foreclose student victims from such recovery for sexual

harassment amounting to either quid pro quo or hostile environment

discrimination under principles modeled on the Title VII standards.

In Guardians Ass’n v. Civil Serv. Comm’s of New York

, 463 U.S.

582 (1983), the Supreme Court held, in a Title VI action prior to

Franklin, that monetary damages should not be awarded under Title- 31 -

VI for unintentiona l disparate impact discrimination. Justice

White, announcing the judgment of the Court, explicitly noted that

the holding that damages were not available for unintentional

discriminati on based on disparate impact left open the issue of

whether money damages would be appropriate in cases of “intentional

discrimination.” I d. at 597. Thus, Justice White clearly implied

that “intentional discrimination” is discrimination other than that

based on disparate impact. This section of Justice White’s opinion

was joined by Justice Rehnquist. Additionally, the distinction

between intentional discrimination and unintentional disparate

impact discrimination was implicit in the concurring opinions and

dissents of Justices O’Connor, id. at 613, Marshall, id. at 616,

and Stevens, Brennan and Blackmun, id. at 645. Therefore, a

majority of the Guardians Court implicitly but clearly defined

“intentional discrimination” as discrimination other than disparate

impact discrimination. D oe v. Petaluma City Sch. Dist.

, 1996 WL

432298 at *3 (N.D.Cal. July 22, 1996).

Subsequent to Franklin, the Supreme Court in Landgraf v. USI

Film Products, 511 U.S. 24 4 (1994), confirmed the distinction it

draws between intentional discrimination (including hostile

environment sexual harassment) and unintentional disparate impact

discrimination. The Civil Rights Act of 1991 created a right to

recover compensatory damages in cases of “unlawful intentional

discrimination (not an employment practice that is unlawful because- 32 -

of its di sparate impact)” prohibited by Title VII. 42 U.S.C. §

1981(a). This amendment to Title VII sets up the same dichotomy as

did the Supreme Court in Franklin and Guardians, for it limits the

award of money damages to cases involving “in t entional

discrimination.” In L andgraf the Supreme Court, in a Title VII

case involving a hostile work environment claim, held that the

provisions affording the right to such money damages do not apply

to a Title VII case that was pending on appeal when the statute was

enacted. The Supreme Court, in its discussion of whether the

amendment should be given retroactive application, clearly assumed

that “intentional discrimination” would include hostile work

environment discrimination based on co-worker harassment.

Landgraf

, 511 U.S. at 249-50. The Court’s assumption evidently was

based on its own classification of ho s tile environment

discrimination as “intentional discrimination.” For example, the

Court stated that the amendment “confers a new right to monetary

relief on persons like petitioner who were victims of a hostile

work environment but were not constructively discharged.” I d. at

283. Thus the Guardians and Landgraf opinions indicate that when

the Supreme Court referred to “intentional discrimination” i n

Franklin

, it was referring to any form of discrimination other

than disparate impact discrimination. In other words, “intentional

discrimination” includes hostile work environment discrimination.

See Doe v. Petaluma City Sch. Dist. , 1996 WL 432298 at *7-8 (N.D.- 33 -

Cal. July 22, 1996) (citing also as earlier authority Henson v.

City of Dundee

, 682 F.2d 897, 902-05 n.11 (11th Cir. 1982); Andrews

v. City of Philadelphia

, 895 F.2d 1469, 1482 n.3 (3d Cir.

1990)(“[T]he intent to discriminate on the basis of sex in cases

involving sexual propositions, innuendo, pornographic materials, or

sexual derogatory language is implicit, and thus should be

recognized as a matter of course”)).

This background explains why recent cases under the 1991

amendments to Title VII simply characterize hosti le work

environment discrimination as a species of intentional

discrimination, without discussion. P etaluma

, 1996 WL 4 32298 at

*10 (citing Townsend v. Indiana Univ.

, 995 F.2d 691 (7th Cir.

1993); Raney v. Dist. Of Columbia , 892 F.Supp. 283 (D.D.C. 1995);

Sassaman v. Heart City Toyota

, 879 F.Sup p. 901 (N.D.Ind. 1994);

Splunge v. Shoney’s, Inc. , 874 F.Supp. 1258 (M.D.Ala. 1994);

Preston v. Income Producing Management, Inc.

, 871 F.Supp. 411

(D.Kan. 1994); Meadows v. Guptill

, 856 F.Supp. 1362 (D.Ariz. 1993);

Powell v. Las Vegas Hilton Corp.

, 841 F.Supp. 1024 (D.Nev. 1992)).

“If there was ambiguity regarding whether hostile environment

claims were a species of intentional discrimination, this ambiguity

has now been resolved by the 1991 amendments and the cases applying

them.” Id.

Moreover, the recent draft guidances issued by the Office of

Civil Rights of the De partment of Education discussed below1 Subpart D--Discrimination on the Basis of Sex

in Education Programs and Activities

Prohibited

§ 106.31 Education Programs and Activities.

(a) General. Except as provided elsewhere in this

part, no person shall, on the basis of sex, be excluded

from participation in, be denied the benefits of, or be

subjected to discrimination under any academic,

- 34 - confirms that the majority of the courts are correct in applying

the standards developed under Title VII in the adjud ication and

review of students’ claims based on Title IX violations involving

peer or school employee hostile environment discrimination.

REGULATORY DEVELOPMENTS

In Rowinsky we recognized that “[w]hen interpreting title IX,

we acco rd the OCR’s [Office of Civil Rights of the Department of

Education] interpretations appreciable deference.” 80 F.3d at 1015

n.20 (citing C ohen v. Brown Univ. , 991 F.2d 888, 895 (1st Cir.

1993)), which elaborated:

[W]e treat [the Department of Education], acting through its

OCR, as the administrative agency charged with administering

Title IX.

Recognizing the agency’s role has important practical and

legal consequences. Although [the Department] is not a party

to this appeal, we must accord its interpretation of Title IX

appreciable deference. See Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct.

2778, 2782, 81 L.Ed.2d 694 (1984); see also Udall v. Tallman,

380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616

(1965) (noting that the Supreme Court “gives great deference to

the interpretation given the statute by the officers or agency

charged with its administration”).

Nevertheless, the Rowinsky majority concluded that 34 C.F.R . §

106.31 1 cannot reasonably be read to prohibi t a recipient fromextracurricular, research, occupational training, or

other education program or activity opera ted by a

recipient which receives or benefits from Federal

financial assistance.....

(b) Specific prohibitions. Except as provided in

this subpart, in providing any aid, benefit, or service

to a student, a recipient shall not, on the basis of sex:

* * *

(2) Provide different aid, benefits, or

services or provide aid, benefits, or services

in a different manner;

(3) Deny any person any such aid, benefit, or

service;

(4) Subject any person to separate or

different rules of behavior, sanctions, or

other treatment;

* * *

(6) Aid or perpetuate discrimination against

any person by providing significant assistance

to any agency, organization, or person which

discriminates on the basis of sex in providing

any aid, benefi t or service to students or

employees;

(7) Otherwise limit any person in the

enjoyment of any right, privilege, advantage,

or opportunity.

- 35 - knowingly allowing peer sexual harassment of students. 80 F.3d at

1015. The majority inferred as much because the most definitive

statement by the OCR on sexual harassment at that time left

unresolved the issue of peer sexual harassment. Id

.

Subsequent to the handing down of Rowinsky on April 2, 1996,

however, the OCR issued (1) on August 16, 1996, a draft document on

“Sexual Harassment Guidance : Peer Sexual Harassment [Guidance],”

providing educational institutions with information regarding the

standards used by OCR to in vestigate and resolve cases involving- 36 -

claims that peer sexual harassment has created a hostile

environment in violation of Title IX. 61 Fed. Reg. 42,728 (August

16, 1996); and (2) on October 4, 1996, a draft document on “Sexual

Harassment Guidance: Harassment of Students by School Employees,”

providing educational institutions with information regarding the

standards used by the OCR to investigate and resolve cases

involving claims that sexual harassment of students by school

employees has created a hostile environment in violation of Title

IX. 61 Fed. Reg. 52,171 (October 4, 1996). ( N .B. The OCR attached

both draft documents as appendices to 61 Fed. Reg. 52,171.) The OCR

invited interested partie s to comment on the clarity and

completeness of the draft guidances. The periods for comment on

these draft documents have elapsed. The OCR is proceeding to

combine the substance of the two drafts in one Guidance that will

be issued in the very near future.

In effect , the new OCR Guidance will provide that, in

accordance with the OCR’s longstandin g nationwide practice, the

legal principles developed under Title VII should be applied in

determining when a hostile environment discrimination violation has

occurred because of sexual harassment of a student by either peers

or a school e mployee. In the more recent draft document the OCR

stated:

Consistent with the Supreme Co urt’s decision in F ranklin v.

G winnett County Public Schools

, 503 U.S. 60 (1992)(hol ding

that a student may sue a school district for damages based on

sexual harassment by a teacher), OCR has applied Title IX to- 37 -

prohibit sexual harass ment of students by school employees.

Th e standards in the Guidance reflect OCR’s longstanding

nationwide practice and reflect well established legal

principles developed under Title VII of the Civil Rights Act

of 1964, which prohibits gender discrimination in employment.

61 Fed. Reg. at 52,172.

Below are highlights of the two Guidance drafts. The material

is lifted as almost verbatim excerpts from the drafts. Footnote

material has been merged with text material in many instances.

Citations of authorities have been selectively drawn from the

footnotes. This presents a quick, incomplete view of some of the

significant provisions.

School Employee Harassment

According to the OCR draft Guidance, sex ual harassment of

students by a school employee is a form of prohibited sex

discrimination in the following circumstances:

Q uid Pro Quo Harassment --A school employee explicitly or

implicitly conditions a student’s participation in an

education program or school activity or bases an educational

decision on the student’ s submission to unwelcome sexual

advances, requests for sexual favors, or other verbal or

physical conduct of a sexual nature. Quid pro quo harassment

is equally unlawful whet her the student resists and suffers

the threatened harm or submits and thus avoids the threatened

harm. [61 Fed.Reg. at 52,172].- 38 -

Hostile Environment Harassment --Sexually harassing conduct by

an em p loyee (that can include unwelcome sexual advances,

requests for sexual favors, and other verbal or physical

conduct of a sexual nature) is sufficientl y severe,

persistent, or pervasive to limit a student’s ability to

participate in or benefit fro m an education program or

a ctivity, or to create a hostile or abusive educational

environment. [61 Fed.Reg. at 52,172].

A school’s liability for sexual harassment by its employees is

determined by app lication of agency principles, s ee Franklin v.

Gwinnett County Public Schools

, 503 U.S. 60, 75 (1992), i.e., by

principles governing the delegation of a u thority to or

au thorization of another person to act on one’s behalf.

Accordingly, a school will always be liable for even one instance

of quid pro quo ha rassment by a school employee in a position of

authority, such as a teacher or administrator, whether or not it

knew, should have known, or approved of the harassment at issue.

See Meritor Savings Bank, FSB v. Vinson

, 477 U.S. 57, 70-71 (1986);

see also Lipsett v. Univ. of Puerto Rico , 864 F.2d 881, 901 (1st

Cir. 1988); EEOC Notice N-915-050, March 1990, at 21; Kadiki v.

Virginia Commonwealth Univ

., 892 F. Supp. 746, 752 (E.D. Va. 1995).

Under agency principles if a teacher or other employee uses the

a uthority he or she is given (e.g., to assign grades) to f orce a

student to submit to sexual demands, the employee “stands in the- 39 -

shoes” of the school and the school will be responsible for the use

of its authority by the employee/agent. Kadiki

, 892 F.Supp. at

754-55. [61 Fed.Reg. at 52,172-3].

A school will also be liable for hostile environment sexual

harassment by its employees, i.e., for harassment that is

sufficiently severe, persistent, or pervasive to limit a student’s

ability to participate in or benefit from the education program, or

t o create a hostile or abusive environment if the employee--(1)

Acted with apparent authority (i.e., because of the s chool’s

conduct, the employee reasonably appears to be acting on behalf of

the school, whether or not the employee acted with authority); see

Restatement (2d) Agency § 219(2)(d); Martin v. Cavalier Hotel

Corp., 48 F.3d 1343, 1352 (4th Cir. 1994); or (2) was aided in

carrying out the sexual harassment of students by his or her

position of authority with the institution. EEOC Policy Guidance on

Current Issues of Sexual Harassment at 28; Martin v. Cavalier Hotel

Corp. 48 F.3d at 1352; Karibian , 14 F.3d at 780; Hirshfeld v. New

Mexico Corrections Dept. , 916 F.2d 575, 579 (10th Cir. 1990). In

many cases the line between quid pro quo and hostile environment

discrimination will be blurred, and an employee’s conduct may

constitute both types of harassment. [ Id. at 52,173].

Even in situations not involving (i) quid pro quo harassment,

(ii) creation of a hostile environment through an employee’s

apparent authority, or (iii) creation of a hostile environment in2 § 106.8 Designation of responsible employee

and adoption of grievance procedures.

(a) D esignation of responsible employee. E ach

recipient shall designate at least one employee to

coordinate its efforts to comply with and carry out its

responsibilities under this part, including any

investigation of any complaint communicated to such

recipient alleging any actions which would be prohibited

by this part. The recipient shall notify all its

students and employees of the name, office ad dress and

telephone number of the employee or employees appointed

pursuant to this paragraph.

(b) Complaint procedure of recipient. A recipient

shall adopt and publish grievance procedures providing

for prompt and equita ble resolution of student and

employee complaints alleging any action wh ich would be

prohibited by this part.

- 40 - which the employee is aided in carrying out the sexual harassment

by his or her position of authority, a sc hool will be liable for

sexual harassment of its students by its employees if the school

has notice of the harassment (i.e., knew or should have known of

the harassment), but failed to take immediate and appropriate steps

to remedy it. Cf. K aribian , 14 F.3d at 780. Determining when a

school has notice of sexual harassment is discussed in the Peer

Harassment Guidance. [61 Fed.Reg. at 72,173] (discussed infra at

p. 18 et seq.).

Schools are required by the Title IX regulations to adopt and

publish grievanc e procedures providing for prompt and equitable

resolution of sex discrimination complaints, including complaints

of sexual harassment, and to dissemina te a policy against sex

discrimination. 34 CFR 106.8(a) and (b) 2

. If a school fails to do- 41 -

so, it will be liab le for the lack of procedures regardless of

whether sexual harassment occurred. In addition, if OCR determines

that the harassment occurred, the school may be in violation of

Title IX as to the harassment , under the agency principles

previously discussed, beca u se a school’s failure to implement

effective policies and procedures against discrimination may create

apparent authority for school employees to harass students. EEOC

Policy Guidance at p. 25 (“***in the absence of a strong, widely

disseminated, and consistently enforced employer policy against

sexual harassment, and an effective complaint procedure, employees

could reasonably believe that a harassing supervisor’s actions will

be ignored, tolerated, or even condoned b y upper management.”)

[61 Fed.Reg. at 52,l73].

In all cases of alleged harassment by employees investigated

by OCR, OCR will determine whether a school has taken immediate and

appropriate steps reasonably calculated to end any harassment that

has occurred, remedy its effects, and prevent harassment from

occurring again. If the school has done so, OCR will consider the

case against that school resolved and will take no further action.

This is true in cases in which the school was in violation of Title

IX, as well as those in which there has been no violation of

federal law. However, schools should note that the Supreme Court

has held that, should a student file a private lawsuit under Title

IX, monetary damages are available as a remedy if there has been a- 42 -

violation of Title IX. Franklin , 503 U.S. at 76. Of course, a

school’s immediate and appropriate remedial actions are relevant in

determining the extent and nature of damages suffered by a

plaintiff. [61 Fed.Reg. at 52,173].

Although generally, a pla intiff must prove that the sexual

harassment is unwelcome in order to state an actionable claim, if

elementary students are involved, welcomeness will not be an issue:

OCR will never view sexual conduct between an adult school employee

and an elementary school student as consensual. Because students

may be encouraged to believe that a teacher has absolute authority

over the operation of his or her classroom, a student may not

object to a teacher’s sexually harassing commen ts during class.

See Leija v. Canutillo ISD , 887 F. Supp. 947, 945 (N.D. Tex.

1993)(“young children, taught to respect their teachers and follow

their teacher’s request , often do not know what to do when abuse

occurs”). [61 Fed.Reg. at 52,173].

In determining whether an employee’s sexual ha rassment of a

student created a hostile environm ent, i.e., whether it was

sufficiently severe, persistent, or pervasive to limit a student’s

ability to participate in or benefit from the education program, or

create a hostile or abusive educational environment, OCR considers

the factors discussed in the Peer Harassment Guidance. [61

Fed.Reg. at 52,175-83].

Peer Harassment- 43 -

The Peer Harassment draft guidance discusses the analysis that

the OCR follows, and that recipients of federal funding should use,

when investigating allegations that sexual harassment of a student

or students by another student or group of st udents (peer

harassment) has created a hostile environment at an edu cational

institution that receives federal financial assistance. [61

Fed.Reg. at 52,175].

Under Title IX and its implementing regulations, no individual

may be discriminated against on the basis of sex in educational

programs receiving federal financial assistance. 20 USC § 1681 e t

seq. ; 34 CFR § 106.31(b), supra n.1. In analyzing sexual

harassment claims, the Department also applies, as appropriate to

the educational context, many of the legal principles applicable to

sexual harassment in the work place, developed under Title VII of

the Civil Rights Act of 1964, 42 USC § 2000e-2(a). S ee Franklin v.

Gwinnett County Public Schools

, 503 U.S. 60, 75 (1992)(applying

Title VII principles in determining that a student was entitled to

protection from sexual harassment by a teacher in school under

Title IX); Murray v. New York Univ. College of Dentistry , 57 F.3d

243, 249 (2d Cir. 1995)(same); Doe v. Petaluma City Sch. Dist.

, 830

F. Supp. 1560, 1571-72 (N.D.Cal. 1993) (same), rev’d in part on

other grounds

, 54 F.3d 1447 (9th Cir. 1995) . [61 Fed.Reg. at

52,175].3 For information on racial harassment, see the Department’s

Notice of Investigative Guidance for Racial Harassment, 59 Fed Reg.

11,448 (1994).

- 44 - In addition, many of the principles applicable to racial

harassment under Title VI of the Civil Rights Act, 42 USC § 2000d

et seq.

, and Title VII also apply to sexual harassment under Title

IX. Indeed, Title IX was modeled on Title VI, Cannon v. Univ. of

Chicago

, 441 U.S. 677, 694 (1979). 3 [61 Fed.Reg. at 52,175 n.2].

Peer sexual harassment is a form of p rohibited sex

discrimination where the harassin g conduct creates a hostile

environment. S ee Franklin

, 503 U.S. at 75; Bosley v. Kear ney R1S D , 904 F.Supp. 1006, 1023 (W.D.Mo. 1995); B urrow v. Postville

CSD

, 1996 U.S. Dist LEXIS 9147 at *34 (N.D. Iowa June 17, 1996);

Oona R.-S. v. Santa Rosa City Schools , 890 F.Supp. 1452 (N.D.Cal.

1995); Davis v. Monroe County Bd. of Ed.

, 74 F.3d 1186, 1193 (11th

Cir. 1996), vacated, reh’g granted ; cf. Murray v. NYU , 57 F.3d at

249. Title IX does not make a school responsible for the actions

of the harassing student, but rather for its own discrimination in

failing to act and permitting the harassment to continue once a

school off icial knows that it is happening. [61 Fed. Reg. at

52,180 n.3].

A school will have notice of a hostile environment when it

knew or should have known of the harassment. D avis v. Monroe

County

, 74 F.3d at 1194, and other authorities including Rosa H. v.- 45 -

San Elizario ISD

, 887 F.Supp. 140, 143 (W.D.Tex. 1995)(“[T]he

school district is in the best position to be o n the lookout for

discriminatory conduct * * * A ‘knew or should have known’

requirement mandates that the school district monitor its employees

and students and prevents a situation where the district, through

its employees or policies, turns a blind eye toward discriminatory

conduct.”)]. Moreover, schools are required by the Title IX

regulations to have grievance procedures through which students can

complain of alleged sex discrimination by other students, including

sexual harassment. 34 CFR § 106.8(b). [61 Fed.Reg. 52,178-79].

A school will be liable for the conduct of its students that

creates a sex ually hostile environment where (i) a hostile

environment exists, (ii) th e school knows (“has notice”) of the

harassment, and (iii) the school fails to t ake immediate and

appropriate steps to remedy it. [61 Fed.Reg. at 52,177]. [ Citing

again Franklin, Bosley, Doe, Burrow, Oona R.-S., Davis, and Murray,

cited above.]

A recipient can receive notice of peer sexual harassment

creating a hostile environment in many differ ent ways. Because

schools are required to have Title IX grievance procedures, a

student may have filed a grievance or complained to a teacher about

fellow students sexually harassing him or her. A student, parent,

or other individual may have contacted other appropriate personnel,

such as a principal, campus security, bus dri ver, teacher, an- 46 -

affirmative action officer, o r staff in the office of student

affairs. An agent or responsible employee of the institution may

have witnessed the harassment. The recipient may receive notice in

an indirect manner, from sources such as a member of the school

staff, a member of the educational or local community, or the

media. The recipient also may have received notice from flyers

ab out the incident[s] posted around the school. S ee Racial

Harassment Guidance, 59 Fed. Reg. at 11,450 ( discussing how a

school may receive notice). [61 Fed.Reg. at 52,178].

Constructive notice exists when the school “should have” known

about the harassment--when the school wou ld have found out about

the harassment through a “reasonably diligent inquiry.” S ee Yates

v. Avco Corp.

, 819 F.2d 630, 634-36 (6th Cir. 1987)(Title VII

case); Katz v. Dole

, 709 F.2d 251, 256 (4th Cir. 1983)(same);

Racial Harassment Investigative Guidance, 59 Fed. Reg. at 11,450.

In some cases, the pervasiveness of the harassment may be enough to

conclude that the scho ol should have known of the hostile

environment--where the harassment is widespread, openly practiced,

or well-known to students and staff (such as sexual harassment

occurring i n hallways, graffiti in public areas, or harassment

occurring during recess under a teacher’s supervision).[61 Fed.Reg.

at 52,177]

CONCLUSIONS- 47 -

I respectfully disagree with the majority opinion’s failure

to apply Title IX as impliedly interpreted by the Supreme Court in

Franklin v. Gwinnett C ounty Public Schools, a s implemented by 34

CFR § 106.1 et seq., and as interprete d by the OCR’s draft

Guidances on Harassment of Students by School Employees, 61

Fed.Reg. at 52171-52183 (Octo ber 4, 1996). In my opinion these

authori ties strongly indicate that we should apply the standards

developed under Title VII in the adjudication and review of a

student’s claim of hostile environment sexual discrimination by a

schoo l employee under Title IX. All of the other circuits which

have addressed this question have done so. Kinman v. Omaha Public

Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Seamons v. Snow, 84 F.3d

1226 (10th Cir. 1996); Davis v. Monroe County Bd. of Educ., 74 F.3d

1186 (11th Cir. 1996), vacated, pending reh’g en banc ; Murray v.

New York Univ. College of Dentistry, 57 F.3d 243 ( 2d Cir. 1995).

The majority opinion does not offer any cogent legal reason for its

failure t o recognize and follow these authorities. Furthermore,

although this court may not have been aware of the OCR’s draft

guidances when the case was a rgued, now that we aware of them we

should give great deference to the interpretations of the OCR as

the administrative agency charged with administering Title IX. S ee

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984); Udall v. Tallman , 380 U.S. 1 (1965); Rowinsky v.

Bryan ISD , 80 F.3d 1006 (5th Cir. 1996).- 48 -

Accordingly, in a Title IX action based on hostile environment

discrimination caused by a school employee’s sexual harassment of

a student, the plaintiff must establish a basis for the educational

institution’s liability. This requires the plaintiff to show that

the school knew or should have known of the harassment in question

and failed to take prompt remedial action. Ordinarily, the

plaintiff can satisfy the “knew or should have known” requirement

by dem onstrating that information of the harassment was

communicated to management-level schoo l employees or by showing

that the pervasiveness of the harassment gave rise to an inference

of actual or constructive knowledge. In the present case, because

it appears that the only school employ ee who received any

communication or information about the harassment was a teacher,

not a management-level school employee, the plaintiffs would have

failed to prove their hostile environment cl aim, had the school

district complied with its obligations under the Title IX

regulations.

Schools are required by the Title IX regulations, however, to

adopt and publish grievance procedures providing for prompt and

equitable resolution of sex discrimination complaints, including

complaints of sexual harassment, and to disseminate a policy

against sex discrimination. 34 CFR § 106.8(b); 61 Fed.Reg. at

52,173. If a school fails to do so, it will be liable under Title

IX for the lack of grievance procedures, regardless of whether- 49 -

sexual harassment occurred. I d. In addition, if OCR determines

that harassment occurred, the school may be in violation of Title

IX as to the harassment under agency principles because the failure

to implement effective policies and procedures against

discrimination may create apparent authority for school employees

to harass students. I d. ; see also EEOC Policy Guidance at 25.

Because we owe accord great deference to the interpretation of

Title IX by the OCR due to its role as the admini strative agency

charged with administering the statute, these principles should be

applied to the evidence in the present case to determine whether

notice of the harassment should be imputed to the school district.

The plaintiffs’ brief and the District Court’s order point to

evidence from which a reasonable trier of fact could conclude that

notice of the harassment should be attributed to the school

district. There was evidence that prior to the incidents in

question the school district had no policy directing students and

parents as to how to make a report of sexual harassment. The

Canutillo Elementary Student Handbook directed students or parents

who had any complaint to first take it up with the student’s

primary teacher. Rosemarie’s understanding was that she should

direct any complaints to her primary teacher. The evidence further

indicated that Rosemarie did not know where the office of the

superintendent was located or that there was a Title IX coordinator

ostensibly responsible for investigating allegations of child- 50 -

abuse. In its memorandum and opinion order the District Court

found that when Rosemarie Leija and her classmate Lizette reported

the molestations to their primary teacher, that teacher discounted

the girls’ story and took n o action of any kind to address the

matter. When Leija’s parents later reported the harassment to the

same teacher, she advised against stirring up trouble and convinced

the parents nothing was happening.

Whether a school district can be charged with knowledge of a

student’s sexual harassment in a civil action b ecause of its

failure to comply with its obligations under Title IX and CFR §

106.8 to establish adequate complaint and grievance procedures is

is a question within our jurisdiction. On consideration of an

interlocutory order certified for appeal by a distr ict court

purs uant to 28 USC § 1292(b), a court of appeals may exercise

jurisdictio n over any question that is included within the order

containing the controlling question of law and is not tied to the

particular question formulated by the District Court. Y amaha v.

Motor Corp. Calhoun

, --- U.S.---, 116 S.Ct. 619 (1996). As the

Court explained:

[T]he appe llate court may address any issue fairly included

within the certified order because “it is the order that is

appealable, and not the controlling question identified by the

district court.” 9 J. Moore & B. Ward, Moore’s Federal

Practice ¶ 110.25[1], p. 300 (2d 3d. 1995). S ee also 16 C.

Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice

and Procedur e §, pp. 144-145 (1977)(“[T]he court of appeals

ma y review the entire order, either to consider a question

different than the one certified as controlling or to decide

the case despite the lack of any identified controlling- 51 -

question.”); Note, Interlocutory Appeals in the Federal Courts

Under 28 USC § 1292(b), 88 Harv. L. Rev. 607, 628-629

(1975)(“scope of review [includes] all issues material to the

order in question”).

Id. , 116 S.Ct. at 623.

By the same token, this court can exercise jurisdiction over

the question of whether the male health and physical education

teacher comm itted quid pro quo sexual harassment upon Rosemarie.

This is an issue that is material to and fairly included within the

certified order. The District Court recognized in its memorandum

opinion and order that quid quo pro abuse is a type of sexual

harassment actionable under Title VII in which the actions of the

employer’s agents or supervisory personnel are imputed to the

employer whether or not the employer knew, should have known, or

approved of the actions. That court further concluded that Title

IX cases are properly analyzed, in part, under these two types of

discrimination.

Similarly, the OCR draft Guidance provides that quid pro quo

harassment occurs when a school employee explicitly or implicitly

conditions a student’s participation in an education program or

school activity or bases an educational decision on the student’s

submission t o unwelcome sexual advances, requests for sexual

favors, or other verbal or physical conduct of a sexual nature. 61

Fed. Reg. at 52,172, citing Alexander v. Yale Univ.

, 459 F.Supp. 1,

4 (D. Conn. 1977); Kadiki v. Va. Commonwealth Univ., 892 F.Supp.

746, 752 (E.D.Va. 1995); Karibian v. Columbia Univ. , 14 F.3d 773,- 52 -

777-79 (2d Cir. 1994). A school will always be liable for even one

instance of q uid pro quo harassment by a school employee in a

position of authority, such as a teacher or administrator, whether

or not it knew, should have known, or approved of the harassment.

See Meritor Savings Bank v. Vinson, 477 U.S. at 70-71; Lipsett v.

Univ. of Puerto Ric o , 864 F.2d 881, 901 (1st Cir. 1988); EEOC

Notice N-915-050, March 1990, Policy Guidance on Current Issues of

Sexual Harassment, at 21; Kadiki

, 892 F.Supp. at 752; 61 Fed. Reg.

at 52,173.

The District Court found that Tony Perales taught Rosemarie

Leija health and physical education in the second grade during the

1989-90 school year. During that year, Coach Perales sexually

molested her while she was in his classroom. Most of the abuse

occurred while he w as showing movies to the class in a darkened

classroom. He would instruct Rosemarie to come to the back of the

room and sit on his lap. He would then place his hands beneath her

undergarments and rub her chest, her buttocks, and between her

legs. The plaintiffs’ brief points to evidence in the record that

Peral es referred to Rosemarie as “Princess,” although he did not

have pet names for the other students. He singled out Rosemarie

for special attention, allowing her to sit out physical education

exercises and to do favors and special tasks for him, such as

running errands. He also gave her candy and other gifts that he

did not confer on the other students.- 53 -

Consequently , a reasonable trier of fact could have found

that Rosemarie was placed in a situation, as has occurred in many

cases, in which the line between quid pro quo and hostile

environment discrimination was blurred. See 61 Fed.Reg. at 52,173.

At her young age Rosemarie reasonably could have believed that she

had to tolerate sexual touchi ng, manipulating and petting by

Perales as the price he required for his gifts and special

t reatment of her, his continued favoritism and goodwill, her

continued participation in his class and in the health film

viewing, and her avoidance of embarrassment and humiliati on that

she might suffer had she challenged his advances. Consequently, if

this court does not affirm the judgment of liability against the

school district on t h e plaintiffs’ hostile environment sexual

discrimination claim, it should either do so on the grounds of the

school district’s liability for quid pro quo sexual harassment, or

it should reserve the latter issue for consideration by the

district court upon remand.

The District Court clearly erred in placing limits on damages

recoverable under Title IX. In F ranklin the Supreme Court held

that plaintiffs may recover compens atory damages under Title IX.

The cornersto ne to the Court’s analysis was that all appropriate

reme d ies are presumed available unless Congress has expressly

indicated otherwise. F ranklin, 503 U.S. at 68. The Court noted

that the amendments to Title IX subsequent to its decision in- 54 -

Cannon indicated that Congress did not intend to limit remedies

available in a suit brought under Title IX. Id. at 72-73. B ased on

the amendments to Title IX and other legislative enactments, the

“traditional backdrop of a full panoply of rights,” and the Court’s

prior decisions, the Franklin Court concluded that a private right

of action under Title IX provides a full spectrum of remedies to a

successful plaintiff. Id. Accord Rodgers v. Magnet Cove Public

Schools

, 34 F.3d 642 (8th Cir. 1994); Waldrop v. Southern Co.

Services, Inc

., 24 F.3d 152 (11th Cir. 1994); Pandazides v.

Virginia Bd. of Educ ., 13 F.3d 823 (4th Cir. 1994).

For the foregoing reasons I res pectfully dissent from the

majority’s decision to reverse the District Court’s judgment in

favor of the plaintiffs holding the school district liable for

damages under Title IX and to remand the case for entry of judgment

in favor of the school district. Instead, for the reasons assigned

above, the district court’s judgment on liabillity on the basis of

hostile e nvironment sexual discrimination should be affirmed and

its judgment placing limits on damages recoverable under Title IX

should be reversed. The case should be remanded to the district

court for f urther proceedingss in light of the reasons stated

herein.