OCTOBER TERM, 1998
Syllabus
DAVIS, AS NEXT FRIEND OF LASHONDA D.
v. MONROE COUNTY
BOARD OF EDUCATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 97-843. Argued January 12, 1999-Decided May 24,1999
Petitioner filed suit against respondents, a county school board
(Board) and school officials, seeking damages for the sexual
harassment of her daughter LaShonda by G. F., a fifth-grade
classmate at a public elementary school. Among other things,
petitioner alleged that respondents' deliberate indifference to G.
F.'s persistent sexual advances toward LaShonda created an
intimidating, hostile, offensive, and abusive school environment
that violated Title IX of the Education Amendments of 1972, which,
in relevant part, prohibits a student from being "excluded from
participation in, be[ing] denied the benefits of, or be[ing]
subjected to discrimination under any education program or activity
receiving Federal financial assistance," 20 U. S. C. § 1681(a). In
granting respondents' motion to dismiss, the Federal District Court
found that "studenton-student," or peer, harassment provides no
ground for a Title IX private cause of action for damages. The en
banc Eleventh Circuit affirmed.
Held:
1. A private Title IX damages action may lie against a school
board in cases of student-on-student harassment, but only where the
funding recipient is deliberately indifferent to sexual harassment,
of which the recipient has actual knowledge, and that harassment is
so severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational opportunities
or benefits provided by the school. Pp. 638-653.
(a) An implied private right of action for money damages exists
under Title IX,
Franklin v.
Gwinnett County Public
Schools, 503 U. S.
60, where funding recipients had adequate notice that they
could be liable for the conduct at issue,
Pennhurst State School
and Hospital v.
Halderman, 451 U. S. 1, 17, but a
recipient is liable only for its own misconduct. Here, petitioner
attempts to hold the Board liable for its
own decision to
remain idle in the face of known student-on-student harassment in
its schools. The standard set out in
Gebser v.
Lago Vista
Independent School Dist., 524 U. S. 274-that a
school district may be liable for damages under Title IX where it
is deliberately indifferent to known acts of teacher-student sexual
harassment-also applies in cases
630
Syllabus
of student-on-student harassment. Initially, in
Gebser,
this Court expressly rejected the use of agency principles to
impute liability to the district for the acts of its teachers.
Id., at 283. Additionally, Title IX's regulatory scheme has
long provided funding recipients with notice that they may be
liable for their failure to respond to nonagents' discriminatory
acts. The common law has also put schools on notice that they may
be held responsible under state law for failing to protect students
from third parties' tortious acts. Of course, the harasser's
identity is not irrelevant. Deliberate indifference makes sense as
a direct liability theory only where the recipient has the
authority to take remedial action, and Title IX's language itself
narrowly circumscribes the circumstances giving rise to damages
liability under the statute. If a recipient does not engage in
harassment directly, it may not be liable for damages unless its
deliberate indifference "subject[s]" its students to harassment, i.
e., at a minimum, causes students to undergo harassment or
makes them liable or vulnerable to it. Moreover, because the
harassment must occur "under" "the operations of" a recipient, 20
U. S. C. §§ 1681(a), 1687, the harassment must take place in a
context subject to the school district's control. These factors
combine to limit a recipient's damages liability to circumstances
wherein the recipient exercises substantial control over both the
harasser and the context in which the known harassment occurs.
Where, as here, the misconduct occurs during school hours on school
grounds, misconduct is taking place "under" an "operation" of the
recipient. In these circumstances, the recipient retains
substantial control over the context in which the harassment
occurs. More importantly, in this setting, the Board exercises
significant control over the harasser, for it has disciplinary
authority over its students. At the time of the events here, a
publication for school attorneys and administrators indicated that
student-on-student harassment could trigger Title IX liability, and
subsequent Department of Education policy guidelines provide that
such harassment falls within Title IX's scope. Contrary to
contentions of respondents and the dissent, school administrators
will continue to enjoy the flexibility they require in making
disciplinary decisions so long as funding recipients are deemed
"deliberately indifferent" to acts of student-on-student harassment
only where the recipient's response to the harassment or lack
thereof is clearly unreasonable in light of the known
circumstances. Pp. 639-649.
(b) The requirement that recipients receive adequate notice of
Title IX's proscriptions also bears on the proper definition of
"discrimination" in a private damages action. Title IX proscribes
sexual harassment with sufficient clarity to satisfy
Pennhurst's notice requirement and serve as a basis for a
damages action. See
Gebser, supra, at 281. Having previously
held that such harassment is "discrimination" in the
631
school context under Title IX, this Court is constrained to
conclude that student-on-student sexual harassment, if sufficiently
severe, can likewise rise to the level of "discrimination"
actionable under the statute. The statute's other prohibitions help
to give content to "discrimination" in this context. The statute
not only protects students from discrimination but also shields
them from being "excluded from participation in" or "denied the
benefits of" a recipient's "education program or activity" on the
basis of gender. 20 U. S. C. § 1681(a). It is not necessary to show
an overt, physical deprivation of access to school resources to
make out a damages claim for sexual harassment under Title IX, but
a plaintiff must show harassment that is so severe, pervasive, and
objectively offensive, and that so undermines and detracts from the
victims' educational experience, that the victims are effectively
denied equal access to an institution's resources and
opportunities. Cf.
Meritor Savings Bank, FSB v.
Vinson, 477 U.
S. 57, 67. Whether gender-oriented conduct is harassment
depends on a constellation of surrounding circumstances,
expectations, and relationships,
Oncale v.
Sundowner
Offshore Services, Inc., 523 U. S. 75, 82,
including, but not limited to, the harasser's and victim's ages and
the number of persons involved. Courts must also bear in mind that
schoolchildren may regularly interact in ways that would be
unacceptable among adults. Moreover, that the discrimination must
occur "under any education program or activity" suggests that the
behavior must be serious enough to have the systemic effect of
denying the victim equal access to an education program or
activity. A single instance of severe one-on-one peer harassment
could, in theory, be said to have such a systemic effect, but it is
unlikely that Congress would have thought so. The fact that it was
a teacher who engaged in harassment in
Franklin and
Gebser is relevant. Peer harassment is less likely to
satisfy the requirements that the misconduct breach Title IX's
guarantee of equal access to educational benefits and have a
systemic effect on a program or activity. Pp. 649-653.
2. Applying this standard to the facts at issue, the Eleventh
Circuit erred in dismissing petitioner's complaint. This Court
cannot say beyond doubt that she can prove no set of facts that
would entitle her to relief. She alleges that LaShonda was the
victim of repeated acts of harassment by G. F. over a 5-month
period, and allegations support the conclusion that his misconduct
was severe, pervasive, and objectively offensive. Moreover, the
complaint alleges that multiple victims of G. F.'s misconduct
sought an audience with the school principal and that the
harassment had a concrete, negative effect on LaShonda's ability to
receive an education. The complaint also suggests that petitioner
may be able to show both actual knowledge and deliberate
indifference
632
on the part of the Board, which made no effort either to
investigate or to put an end to the harassment. Pp. 653-654.
120 F.3d
1390, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and THOMAS, JJ., joined,
post, p. 654.
Verna L. Williams argued the cause for petitioner. With her on
the briefs were Marcia D. Greenberger, Leslie T. Annexstein, Nancy
Perkins, and Stevenson Munro.
Deputy Solicitor General Underwood argued the cause for the
United States as amicus curiae urging reversal. With her on the
brief were Solicitor General Waxman, Acting Assistant Attorney
General Lee, Beth S. Brinkmann, Dennis J. Dimsey, and Linda F.
Thome.
W Warren Plowden, Jr., argued the cause and filed a brief
for respondents. *
JUSTICE O'CONNOR delivered the opinion of the Court. Petitioner
brought suit against the Monroe County Board of Education and other
defendants, alleging that her fifthgrade daughter had been the
victim of sexual harassment by another student in her class. Among
petitioner's claims was a claim for monetary and injunctive relief
under Title IX of
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Sara L.
Mandelbaum and
Steven R. Shapiro; for the National
Education Association et al. by
Judith L. Lichtman and
Donna R. Lenhoff; for the NOW Legal Defense and Education
Fund et al. by
Martha F.
Davis, Julie Goldscheid,
Yolanda S.
Wu, David S.
Ettinger, and
Mary-Christine Sungaila; and for the Rutherford Institute by
John W Whitehead and
Steven H. Aden.
Briefs of
amici curiae urging affirmance were filed for
the National School Boards Association et al. by
Lisa A. Brown,
Jennifer Jacobs, and
Julie Underwood; and for Students
for Individual Liberty et al. by
James A. Moody.
Richard P. Ward and
Anita K. Blair filed a brief
for the Independent Women's Forum as
amicus curiae.
633
the Education Amendments of 1972 (Title IX), 86 Stat. 373, as
amended, 20 U. S. C. § 1681
et seq. The District Court
dismissed petitioner's Title IX claim on the ground that
"student-on-student," or peer, harassment provides no ground for a
private cause of action under the statute. The Court of Appeals for
the Eleventh Circuit, sitting en banc, affirmed. We consider here
whether a private damages action may lie against the school board
in cases of student-onstudent harassment. We conclude that it may,
but only where the funding recipient acts with deliberate
indifference to known acts of harassment in its programs or
activities. Moreover, we conclude that such an action will lie only
for harassment that is so severe, pervasive, and objectively
offensive that it effectively bars the victim's access to an
educational opportunity or benefit.
I
Petitioner's Title IX claim was dismissed under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief could be granted. Accordingly, in reviewing the legal
sufficiency of petitioner's cause of action, "we must assume the
truth of the material facts as alleged in the complaint."
Summit
Health, Ltd. v.
Pinhas, 500 U. S. 322, 325
(1991).
A
Petitioner's minor daughter, LaShonda, was allegedly the victim
of a prolonged pattern of sexual harassment by one of her
fifth-grade classmates at Hubbard Elementary School, a public
school in Monroe County, Georgia. According to petitioner's
complaint, the harassment began in December 1992, when the
classmate, G. F., attempted to touch LaShonda's breasts and genital
area and made vulgar statements such as "'I want to get in bed with
you'" and "'I want to feel your boobs.'" Complaint ~ 7. Similar
conduct allegedly occurred on or about January 4 and January 20,
1993.
Ibid. LaShonda reported each of these incidents to
her
634
mother and to her classroom teacher, Diane Fort.
Ibid.
Petitioner, in turn, also contacted Fort, who allegedly assured
petitioner that the school principal, Bill Querry, had been
informed of the incidents.
Ibid. Petitioner contends that,
notwithstanding these reports, no disciplinary action was taken
against G. F.
Id., ~ 16.
G. F.'s conduct allegedly continued for many months. In early
February, G. F. purportedly placed a door stop in his pants and
proceeded to act in a sexually suggestive manner toward LaShonda
during physical education class.
Id., ~ 8. LaShonda reported
G. F.'s behavior to her physical education teacher, Whit Maples.
Ibid. Approximately one week later, G. F. again allegedly
engaged in harassing behavior, this time while under the
supervision of another classroom teacher, Joyce Pippin.
Id.,
~ 9. Again, LaShonda allegedly reported the incident to the
teacher, and again petitioner contacted the teacher to follow up.
Ibid.
Petitioner alleges that G. F. once more directed sexually
harassing conduct toward LaShonda in physical education class in
early March, and that LaShonda reported the incident to both Maples
and Pippen.
Id., ~ 10. In mid-April 1993, G. F. allegedly
rubbed his body against LaShonda in the school hallway in what
LaShonda considered a sexually suggestive manner, and LaShonda
again reported the matter to Fort.
Id., ~ 11.
The string of incidents finally ended in mid-May, when G. F. was
charged with, and pleaded guilty to, sexual battery for his
misconduct.
Id., ~ 14. The complaint alleges that LaShonda
had suffered during the months of harassment, however;
specifically, her previously high grades allegedly dropped as she
became unable to concentrate on her studies, id., ~ 15, and, in
April 1993, her father discovered that she had written a suicide
note,
ibid. The complaint further alleges that, at one
point, LaShonda told petitioner that she "'didn't know how much
longer she could keep [G. F.] off her.'"
Id., ~ 12.
635
Nor was LaShonda G. F.'s only victim; it is alleged that other
girls in the class fell prey to G. F.'s conduct.
Id., ~ 16.
At one point, in fact, a group composed of LaShonda and other
female students tried to speak with Principal Querry about G. F.'s
behavior.
Id., ~ 10. According to the complaint, however, a
teacher denied the students' request with the statement, "'If
[Querry] wants you, he'll call you.'"
Ibid.
Petitioner alleges that no disciplinary action was taken in
response to G. F.'s behavior toward LaShonda.
Id., ~ 16. In
addition to her conversations with Fort and Pippen, petitioner
alleges that she spoke with Principal Querry in midMay 1993. When
petitioner inquired as to what action the school intended to take
against G. F., Querry simply stated, "'I guess I'll have to
threaten him a little bit harder.'"
Id., ~ 12. Yet,
petitioner alleges, at no point during the many months of his
reported misconduct was G. F. disciplined for harassment.
Id.,
~ 16. Indeed, Querry allegedly asked petitioner why LaShonda
"'was the only one complaining.'"
Id., ~ 12.
Nor, according to the complaint, was any effort made to separate
G. F. and LaShonda.
I d., ~ 16. On the contrary,
notwithstanding LaShonda's frequent complaints, only after more
than three months of reported harassment was she even permitted to
change her classroom seat so that she was no longer seated next to
G. F.
Id., ~ 13. Moreover, petitioner alleges that, at the
time of the events in question, the Monroe County Board of
Education (Board) had not instructed its personnel on how to
respond to peer sexual harassment and had not established a policy
on the issue.
Id., ~ 17.
B
On May 4, 1994, petitioner filed suit in the United States
District Court for the Middle District of Georgia against the
Board, Charles Dumas, the school district's superintendent, and
Principal Querry. The complaint alleged that the Board
636
is a recipient of federal funding for purposes of Title IX, that
"[t]he persistent sexual advances and harassment by the student G.
F. upon [LaShonda] interfered with her ability to attend school and
perform her studies and activities," and that "[t]he deliberate
indifference by Defendants to the unwelcome sexual advances of a
student upon LaShonda created an intimidating, hostile, offensive
and abus[ive] school environment in violation of Title IX."
Id.,
~~ 27, 28. The complaint sought compensatory and punitive
damages, attorney's fees, and injunctive relief.
Id., ~
32.
The defendants (all respondents here) moved to dismiss
petitioner's complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief could be
granted, and the District Court granted respondents' motion. See
862 F. Supp. 363, 368 (MD Ga. 1994). With regard to petitioner's
claims under Title IX, the court dismissed the claims against
individual defendants on the ground that only federally funded
educational institutions are subject to liability in private causes
of action under Title IX.
Id., at 367. As for the Board, the
court concluded that Title IX provided no basis for liability
absent an allegation "that the Board or an employee of the Board
had any role in the harassment."
Ibid.
Petitioner appealed the District Court's decision dismissing her
Title IX claim against the Board, and a panel of the Court of
Appeals for the Eleventh Circuit reversed.
74
F.3d 1186, 1195 (1996). Borrowing from Title VII law, a
majority of the panel determined that student-on-student harassment
stated a cause of action against the Board under Title IX: "[W]e
conclude that as Title VII encompasses a claim for damages due to a
sexually hostile working environment created by co-workers and
tolerated by the employer, Title IX encompasses a claim for damages
due to a sexually hostile educational environment created by a
fellow student or students when the supervising authorities
knowingly fail to act to eliminate the harassment."
Id., at
1193. The
637
Eleventh Circuit panel recognized that petitioner sought to
state a claim based on school "officials' failure to take action to
stop the offensive acts of those over whom the officials exercised
control," ibid., and the court concluded that petitioner had
alleged facts sufficient to support a claim for hostile environment
sexual harassment on this theory, id., at 1195.
The Eleventh Circuit granted the Board's motion for rehearing en
banc,
91 F.3d
1418 (1996), and affirmed the District Court's decision to
dismiss petitioner's Title IX claim against the Board,
120 F.3d
1390 (1998). The en banc court relied, primarily, on the theory
that Title IX was passed pursuant to Congress' legislative
authority under the Constitution's Spending Clause, U. S. Const.,
Art. I, § 8, cl. 1, and that the statute therefore must provide
potential recipients of federal education funding with "unambiguous
notice of the conditions they are assuming when they accept" it.
120 F. 3d, at 1399. Title IX, the court reasoned, provides
recipients with notice that they must stop their employees from
engaging in discriminatory conduct, but the statute fails to
provide a recipient with sufficient notice of a duty to prevent
student-on-student harassment.
Id., at 140l.
Writing in dissent, four judges urged that the statute, by
declining to identify the perpetrator of discrimination,
encompasses misconduct by third parties: "The identity of the
perpetrator is simply irrelevant under the language" of the
statute.
Id., at 1412 (Barkett, J., dissenting). The plain
language, the dissenters reasoned, also provides recipients with
sufficient notice that a failure to respond to student-onstudent
harassment could trigger liability for the district.
Id., at
1414.
We granted certiorari, 524 U. S. 980 (1998), in order to resolve
a conflict in the Circuits over whether, and under what
circumstances, a recipient of federal educational funds can be
liable in a private damages action arising from student-onstudent
sexual harassment, compare
120 F.3d
1390 (CAll
638
1998) (case below), and
Rowinsky v.
Bryan Independent
School Dist., 80 F.3d
1006, 1008 (CAS) (holding that private damages action for
student-on-student harassment is available under Title IX only
where funding recipient responds to these claims differently based
on gender of victim), cert. denied, 519 U. S. 861 (1996), with
Doe v.
University of Illinois, 138
F.3d 653, 668
(CA7 1998) (upholding private damages
action under Title IX for funding recipient's inadequate response
to known student-on-student harassment), vacated and remanded,
post, p. 1142,
Brzonkala v.
Virginia Polytechnic
Institute and State University, 132 F.3d
949, 960-961
(CA4 1997) (same), vacated and District
Court decision affirmed en bane,
169 F.3d
820 (CA4 1999) (not addressing merits of Title IX
hostile environment sexual harassment claim and directing District
Court to hold this claim in abeyance pending this Court's decision
in the instant case), and
Oona, R.-S.- v.
McCaffrey,
143 F.3d
473, 478
(CA9 1998) (rejecting qualified immunity claim
and concluding that Title IX duty to respond to student-on-student
harassment was clearly established by 1992-1993), cert. denied,
post, p. 1154. We now reverse.
II
Title IX provides, with certain exceptions not at issue here,
that
"[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance." 20 U. S. C. § 1681(a).
Congress authorized an administrative enforcement scheme for
Title IX. Federal departments or agencies with the authority to
provide financial assistance are entrusted to promulgate rules,
regulations, and orders to enforce the objectives of § 1681, see §
1682, and these departments or agencies may rely on "any ... means
authorized by law," including
639
the termination of funding,
ibid., to give effect to the
statute's restrictions.
There is no dispute here that the Board is a recipient of
federal education funding for Title IX purposes. 74 F. 3d, at 1189.
Nor do respondents support an argument that student-on-student
harassment cannot rise to the level of "discrimination" for
purposes of Title IX. Rather, at issue here is the question whether
a recipient of federal education funding may be liable for damages
under Title IX under any circumstances for discrimination in the
form of student-onstudent sexual harassment.
A
Petitioner urges that Title IX's plain language compels the
conclusion that the statute is intended to bar recipients of
federal funding from permitting this form of discrimination in
their programs or activities. She emphasizes that the statute
prohibits a student from being
"subjected to discrimination
under any education program or activity receiving Federal financial
assistance." 20 U. S. C. § 1681(a) (emphasis added). It is Title
IX's "unmistakable focus on the benefited class,"
Cannon v.
University of Chicago, 441 U. S. 677, 691
(1979), rather than the perpetrator, that, in petitioner's view,
compels the conclusion that the statute works to protect students
from the discriminatory misconduct of their peers.
Here, however, we are asked to do more than define the scope of
the behavior that Title IX proscribes. We must determine whether a
district's failure to respond to studenton-student harassment in
its schools can support a private suit for money damages. See
Gebser v.
Lago Vista Independent School Dist.,
524 U. S. 274,
283 (1998) ("In this case, ... petitioners seek not just to
establish a Title IX violation but to recover
damages ...
"). This Court has indeed recognized an implied private right
of action under Title IX, see
Cannon v.
University of
Chicago, supra, and we have held that money damages are
available in such suits,
Franklin v.
640
Gwinnett County Public Schools, 503 U. S. 60 (1992).
Because we have repeatedly treated Title IX as legislation enacted
pursuant to Congress' authority under the Spending Clause, however,
see,
e. g., Gebser v.
Lago Vista Independent School
Dist., supra, at 287 (Title IX);
Franklin v.
Gwinnett
County Public Schools, supra, at 74-75, and n. 8 (Title IX);
see also
Guardians Assn. v.
Civil Servo Comm'n of New
York City, 463 U.
S. 582, 598-599 (1983) (opinion of White, J.) (Title VI),
private damages actions are available only where recipients of
federal funding had adequate notice that they could be liable for
the conduct at issue. When Congress acts pursuant to its spending
power, it generates legislation "much in the nature of a contract:
in return for federal funds, the States agree to comply with
federally imposed conditions."
Pennhurst State School and
Hospital v.
Halderman, 451 U. S. 1, 17 (1981). In
interpreting language in spending legislation, we thus "insis[t]
that Congress speak with a clear voice," recognizing that "[t]here
can, of course, be no knowing acceptance [of the terms of the
putative contract] if a State is unaware of the conditions [imposed
by the legislation] or is unable to ascertain what is expected of
it."
Ibid.; see also
id., at 24-25.
Invoking
Pennhurst, respondents urge that Title IX
provides no notice that recipients of federal educational funds
could be liable in damages for harm arising from student-onstudent
harassment. Respondents contend, specifically, that the statute
only proscribes misconduct by grant recipients, not third parties.
Respondents argue, moreover, that it would be contrary to the very
purpose of Spending Clause legislation to impose liability on a
funding recipient for the misconduct of third parties, over whom
recipients exercise little control. See also
Rowinsky v.
Bryan Independent School Dist., 80 F. 3d, at 1013.
We agree with respondents that a recipient of federal funds may
be liable in damages under Title IX only for its own misconduct.
The recipient itself must "exclud[e] [per-
641
sons] from participation in, ... den[y] [persons] the benefits
of, or ... subjec[t] [persons] to discrimination under" its
"program[s] or activit[ies]" in order to be liable under Title IX.
The Government's enforcement power may only be exercised against
the funding recipient, see § 1682, and we have not extended damages
liability under Title IX to parties outside the scope of this
power. See
National Collegiate Athletic Assn. v.
Smith, 525 U.
S. 459, 467, n. 5 (1999) (rejecting suggestion "that the
private right of action available under ... § 1681(a) is
potentially broader than the Government's enforcement authority");
cf.
Gebser v.
Lago Vista Independent School Dist.,
supra, at 289 ("It would be unsound, we think, for a statute's
express system of enforcement to require notice to the
recipient and an opportunity to come into voluntary compliance
while a judicially
implied system of enforcement permits
substantial liability without regard to the recipient's knowledge
or its corrective actions upon receiving notice").
We disagree with respondents' assertion, however, that
petitioner seeks to hold the Board liable for G. F.'s actions
instead of its own. Here, petitioner attempts to hold the Board
liable for its
own decision to remain idle in the face of
known student-on-student harassment in its schools. In
Gebser, we concluded that a recipient of federal education
funds may be liable in damages under Title IX where it is
deliberately indifferent to known acts of sexual harassment by a
teacher. In that case, a teacher had entered into a sexual
relationship with an eighth-grade student, and the student sought
damages under Title IX for the teacher's misconduct. We recognized
that the scope of liability in private damages actions under Title
IX is circumscribed by
Pennhurst's requirement that funding
recipients have notice of their potential liability. 524 U. S., at
287-288. Invoking
Pennhurst, Guardians Assn., and
Franklin, in
Gebser we once again required "that 'the
receiving entity of federal funds [have] notice that it will be
liable for a mone-
642
tary award'" before subjecting it to damages liability. 524 U.
S., at 287 (quoting
Franklin v.
Gwinnett County Public
Schools, 503 U. S., at 74). We also recognized, however, that
this limitation on private damages actions is not a bar to
liability where a funding recipient intentionally violates the
statute.
Id., at 74-75; see also
Guardians Assn. v.
Civil Servo Comm'n of New York City, supra, at 597-598
(opinion of White, J.) (same with respect to Title VI). In
particular, we concluded that
Pennhurst does not bar a
private damages action under Title IX where the funding recipient
engages in intentional conduct that violates the clear terms of the
statute.
Accordingly, we rejected the use of agency principles to impute
liability to the district for the misconduct of its teachers. 524
U. S., at 283. Likewise, we declined the invitation to impose
liability under what amounted to a negligence standard-holding the
district liable for its failure to react to teacher-student
harassment of which it knew or
should have known.
Ibid. Rather, we concluded that the district could be liable
for damages only where the district itself intentionally acted in
clear violation of Title IX by remaining deliberately indifferent
to acts of teacher-student harassment of which it had actual
knowledge.
Id., at 290. Contrary to the dissent's
suggestion, the misconduct of the teacher in
Gebser was not
"treated as the grant recipient's actions."
Post, at 661
(opinion of KENNEDY, J.). Liability arose, rather, from "an
official decision by the recipient not to remedy the violation."
Gebser V.
Lago Vista Independent School Dist., supra,
at 290. By employing the "deliberate indifference" theory already
used to establish municipalliability under Rev. Stat. § 1979, 42 U.
S. C. § 1983, see
Gebser V.
Lago Vista Independent School
Dist., supra, at 290-291 (citing
Board of Comm'rs of Bryan
Cty. V.
Brown, 520 U. S. 397 (1997), and
Canton V.
Harris, 489 U. S. 378 (1989)), we
concluded in
Gebser that recipients could be liable in
damages only where their own deliberate indifference
effectively
643
"cause[d]" the discrimination, 524 U. S., at 291; see also
Canton v.
Harris, supra, at 385 (recognizing that a
municipality will be liable under § 1983 only if "the municipality
itself causes the constitutional violation at issue"
(emphasis in original)). The high standard imposed in
Gebser
sought to eliminate any "risk that the recipient would be liable in
damages not for its own official decision but instead for its
employees' independent actions." 524 U. S., at 290-291.
Gebser thus established that a recipient intentionally
violates Title IX, and is subject to a private damages action,
where the recipient is deliberately indifferent to known acts of
teacher-student discrimination. Indeed, whether viewed as
"discrimination" or "subject[ing]" students to discrimination,
Title IX "[u]nquestionably ... placed on [the Board] the duty not"
to permit teacher-student harassment in its schools,
Franklin v.
Gwinnett County Public Schools, supra, at
75, and recipients violate Title IX's plain terms when they remain
deliberately indifferent to this form of misconduct.
We consider here whether the misconduct identified in
Gebser-deliberate indifference to known acts of harassment-amounts
to an intentional violation of Title IX, capable of supporting a
private damages action, when the harasser is a student rather than
a teacher. We conclude that, in certain limited circumstances, it
does. As an initial matter, in
Gebser we expressly rejected
the use of agency principles in the Title IX context, noting the
textual differences between Title IX and Title VII. 524 U. S., at
283; cf.
Faragher v.
Boca Raton, 524 U. S. 775, 791-792
(1998) (invoking agency principles on ground that definition of
"employer" in Title VII includes agents of employer);
Meritor
Savings Bank, FSB v.
Vinson, 477 U. S. 57, 72 (1986)
(same). Additionally, the regulatory scheme surrounding Title IX
has long provided funding recipients with notice that they may be
liable for their failure to respond to the discriminatory acts of
certain nonagents. The Department of Education re-
644
quires recipients to monitor third parties for discrimination in
specified circumstances and to refrain from particular forms of
interaction with outside entities that are known to discriminate.
See,
e. g., 34 CFR §§ 106.31(b)(6), 106.31(d), 106.37(a)(2),
106.38(a), 106.51(a)(3) (1998).
The common law, too, has put schools on notice that they may be
held responsible under state law for their failure to protect
students from the tortious acts of third parties. See Restatement
(Second) of Torts § 320, and Comment
a (1965). In fact,
state courts routinely uphold claims alleging that schools have
been negligent in failing to protect their students from the torts
of their peers. See,
e. g., Rupp v.
Bryant, 417 So.
2d 658, 666-667 (Fla. 1982);
Brahatcek v.
Millard School
Dist., 202 Neb. 86, 99-100, 273 N. W. 2d 680, 688
(1979);
McLeod v.
Grant County School Dist. No. 128, 42 Wash. 2d
316, 320, 255 P. 2d 360, 362-363 (1953).
This is not to say that the identity of the harasser is
irrelevant. On the contrary, both the "deliberate indifference"
standard and the language of Title IX narrowly circumscribe the set
of parties whose known acts of sexual harassment can trigger some
duty to respond on the part of funding recipients. Deliberate
indifference makes sense as a theory of direct liability under
Title IX only where the funding recipient has some control over the
alleged harassment. A recipient cannot be directly liable for its
indifference where it lacks the authority to take remedial
action.
The language of Title IX itself-particularly when viewed in
conjunction with the requirement that the recipient have notice of
Title IX's prohibitions to be liable for damagesalso cabins the
range of misconduct that the statute proscribes. The statute's
plain language confines the scope of prohibited conduct based on
the recipient's degree of control over the harasser and the
environment in which the harassment occurs. If a funding recipient
does not engage in harassment directly, it may not be liable for
damages unless its deliberate indifference "subject[s]" its
students to harass-
645
ment. That is, the deliberate indifference must, at a minimum,
"cause [students] to undergo" harassment or "make them liable or
vulnerable" to it. Random House Dictionary of the English Language
1415 (1966) (defining "subject" as "to cause to undergo the action
of something specified; expose" or "to make liable or vulnerable;
lay open; expose"); Webster's Third New International Dictionary
2275 (1961) (defining "subject" as "to cause to undergo or submit
to: make submit to a particular action or effect: EXPOSE").
Moreover, because the harassment must occur "under" "the operations
of" a funding recipient, see 20 U. S. C. § 1681(a); § 1687
(defining "program or activity"), the harassment must take place in
a context subject to the school district's control, Webster's Third
New International Dictionary,
supra, at 2487 (defining
"under" as "in or into a condition of subjection, regulation, or
subordination"; "subject to the guidance and instruction of");
Random House Dictionary,
supra, at 1543 (defining "under" as
"subject to the authority, direction, or supervision of").
These factors combine to limit a recipient's damages liability
to circumstances wherein the recipient exercises substantial
control over both the harasser and the context in which the known
harassment occurs. Only then can the recipient be said to "expose"
its students to harassment or "cause" them to undergo it "under"
the recipient's programs. We agree with the dissent that these
conditions are satisfied most easily and most obviously when the
offender is an agent of the recipient.
Post, at 661. We
rejected the use of agency analysis in
Gebser, however, and
we disagree that the term "under" somehow imports an agency
requirement into Title IX. See
post, at 660-661. As noted
above, the theory in
Gebser was that the recipient was
directly liable for its deliberate indifference to
discrimination. See
supra, at 642-643. Liability in that
case did not arise because the "teacher's actions [were] treated"
as those of the funding recipient,
post, at 661; the
district was directly liable for its
646
own failure to act. The terms "subjec[t]" and "under"
impose limits, but nothing about these terms requires the use of
agency principles.
Where, as here, the misconduct occurs during school hours and on
school grounds-the bulk of G. F.'s misconduct, in fact, took place
in the classroom-the misconduct is taking place "under" an
"operation" of the funding recipient. See
Doe v.
University of Illinois, 138 F. 3d, at 661 (finding liability
where school fails to respond properly to "student-onstudent sexual
harassment that takes place while the students are involved in
school activities or otherwise under the supervision of school
employees"). In these circumstances, the recipient retains
substantial control over the context in which the harassment
occurs. More importantly, however, in this setting the Board
exercises significant control over the harasser. We have observed,
for example, "that the nature of [the State's] power [over public
schoolchildren] is custodial and tutelary, permitting a degree of
supervision and control that could not be exercised over free
adults."
Vernonia School Dist. J,7J v.
Acton,
515 U. S. 646,
655 (1995). On more than one occasion, this Court has recognized
the importance of school officials' "comprehensive authority ... ,
consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools."
Tinker v.
Des Moines
Independent Community School Dist., 393 U. S. 503, 507
(1969); see also
New Jersey v.
T. L. 0., 469 U. S. 325, 342, n. 9
(1985) ("The maintenance of discipline in the schools requires not
only that students be restrained from assaulting one another,
abusing drugs and alcohol, and committing other crimes, but also
that students conform themselves to the standards of conduct
prescribed by school authorities"); 74 F. 3d, at 1193 ("The ability
to control and influence behavior exists to an even greater extent
in the classroom than in the workplace ... "). The common law, too,
recognizes the school's disciplinary authority. See Restatement
(Second) of Torts § 152 (1965). We thus conclude that recipients of
federal funding may be liable for "subject[ing]" their students
647
to discrimination where the recipient is deliberately
indifferent to known acts of student-on-student sexual harassment
and the harasser is under the school's disciplinary authority.
At the time of the events in question here, in fact, school
attorneys and administrators were being told that studenton-student
harassment could trigger liability under Title IX. In March 1993,
even as the events alleged in petitioner's complaint were
unfolding, the National School Boards Association issued a
publication, for use by "school attorneys and administrators in
understanding the law regarding sexual harassment of employees and
students," which observed that districts could be liable under
Title IX for their failure to respond to student-on-student
harassment. See National School Boards Association Council of
School Attorneys, Sexual Harassment in the Schools: Preventing and
Defending Against Claims v, 45 (rev. ed.). Drawing on Equal
Employment Opportunity Commission guidelines interpreting Title
VII, the publication informed districts that, "if [a] school
district has constructive notice of severe and repeated acts of
sexual harassment by fellow students, that may form the basis of a
[T]itle IX claim."
Ibid. The publication even correctly
anticipated a form of
Gebser's actual notice requirement:
"It is unlikely that courts will hold a school district liable for
sexual harassment by students against students in the absence of
actual knowledge or notice to district employees." Sexual
Harassment in the Schools,
supra, at 45. Although we do not
rely on this publication as an "indicium of congressional notice,"
see
post, at 671, we do find support for our reading of
Title IX in the fact that school attorneys have rendered an
analogous interpretation.
Likewise, although they were promulgated too late to contribute
to the Board's notice of proscribed misconduct, the Department of
Education's Office for Civil Rights (OCR) has recently adopted
policy guidelines providing that studenton-student harassment falls
within the scope of Title IX's proscriptions. See Department of
Education, Office of Civil
648
Rights, Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties, 62 Fed. Reg.
12034, 12039-12040 (1997) (OCR Title IX Guidelines); see also
Department of Education, Racial Incidents and Harassment Against
Students at Educational Institutions, 59 Fed. Reg. 11448, 11449
(1994).
We stress that our conclusion here-that recipients may be liable
for their deliberate indifference to known acts of peer sexual
harassment-does not mean that recipients can avoid liability only
by purging their schools of actionable peer harassment or that
administrators must engage in particular disciplinary action. We
thus disagree with respondents' contention that, if Title IX
provides a cause of action for student-on-student harassment,
"nothing short of expulsion of every student accused of misconduct
involving sexual overtones would protect school systems from
liability or damages." See Brief for Respondents 16; see also 120
F. 3d, at 1402 (Tjoflat, J.) ("[A] school must immediately suspend
or expel a student accused of sexual harassment"). Likewise, the
dissent erroneously imagines that victims of peer harassment now
have a Title IX right to make particular remedial demands. See
post, at 686 (contemplating that victim could demand new
desk assignment). In fact, as we have previously noted, courts
should refrain from second-guessing the disciplinary decisions made
by school administrators.
New Jersey v.
T. L. 0.,
supra, at 342-343, n. 9.
School administrators will continue to enjoy the flexibility
they require so long as funding recipients are deemed "deliberately
indifferent" to acts of student-on-student harassment only where
the recipient's response to the harassment or lack thereof is
clearly unreasonable in light of the known circumstances. The
dissent consistently mischaracterizes this standard to require
funding recipients to "remedy" peer harassment,
post, at
658, 662, 668, 683, and to "ensur[e] that ... students conform
their conduct to" certain rules,
post, at 666. Title IX
imposes no such requirements. On the contrary,
649
the recipient must merely respond to known peer harassment in a
manner that is not clearly unreasonable. This is not a mere
"reasonableness" standard, as the dissent assumes. See
post,
at 679. In an appropriate case, there is no reason why courts, on a
motion to dismiss, for summary judgment, or for a directed verdict,
could not identify a response as not "clearly unreasonable" as a
matter of law.
Like the dissent, see
post, at 664-668, we acknowledge
that school administrators shoulder substantial burdens as a result
of legal constraints on their disciplinary authority. To the extent
that these restrictions arise from federal statutes, Congress can
review these burdens with attention to the difficult position in
which such legislation may place our Nation's schools. We believe,
however, that the standard set out here is sufficiently flexible to
account both for the level of disciplinary authority available to
the school and for the potential liability arising from certain
forms of disciplinary action. A university might not, for example,
be expected to exercise the same degree of control over its
students that a grade school would enjoy, see
post, at
666668, and it would be entirely reasonable for a school to refrain
from a form of disciplinary action that would expose it to
constitutional or statutory claims.
While it remains to be seen whether petitioner can show that the
Board's response to reports of G. F.'s misconduct was clearly
unreasonable in light of the known circumstances, petitioner may be
able to show that the Board "subject[ed]" LaShonda to
discrimination by failing to respond in any way over a period of
five months to complaints of G. F.'s in-school misconduct from
LaShonda and other female students.
B
The requirement that recipients receive adequate notice of Title
IX's proscriptions also bears on the proper definition of
"discrimination" in the context of a private damages action. We
have elsewhere concluded that sexual harassment is a
650
form of discrimination for Title IX purposes and that Title IX
proscribes harassment with sufficient clarity to satisfy
Pennhurst's notice requirement and serve as a basis for a
damages action. See
Gebser v.
Lago Vista Independent
School Dist., 524 U. S., at 281;
Franklin v.
Gwinnett
County Public Schools, 503 U. S., at 74-75. Having previously
determined that "sexual harassment" is "discrimination" in the
school context under Title IX, we are constrained to conclude that
student-on-student sexual harassment, if sufficiently severe, can
likewise rise to the level of discrimination actionable under the
statute. See
Bennett v.
Kentucky Dept. of Ed.,
470 U. S. 656,
665-666 (1985) (rejecting claim of insufficient notice under
Pennhurst where statute made clear that there were some
conditions placed on receipt of federal funds, and noting that
Congress need not "specifically identif[y] and proscrib[e]" each
condition in the legislation). The statute's other prohibitions,
moreover, help give content to the term "discrimination" in this
context. Students are not only protected from discrimination, but
also specifically shielded from being "excluded from participation
in" or "denied the benefits of" any "education program or activity
receiving Federal financial assistance." § 1681(a). The statute
makes clear that, whatever else it prohibits, students must not be
denied access to educational benefits and opportunities on the
basis of gender. We thus conclude that funding recipients are
properly held liable in damages only where they are deliberately
indifferent to sexual harassment, of which they have actual
knowledge, that is so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the school.
The most obvious example of student-on-student sexual harassment
capable of triggering a damages claim would thus involve the overt,
physical deprivation of access to school resources. Consider, for
example, a case in which male students physically threaten their
female peers every
651
day, successfully preventing the female students from using a
particular school resource-an athletic field or a computer lab, for
instance. District administrators are well aware of the daily
ritual, yet they deliberately ignore requests for aid from the
female students wishing to use the resource. The district's knowing
refusal to take any action in response to such behavior would fly
in the face of Title IX's core principles, and such deliberate
indifference may appropriately be subject to claims for monetary
damages. It is not necessary, however, to show physical exclusion
to demonstrate that students have been deprived by the actions of
another student or students of an educational opportunity on the
basis of sex. Rather, a plaintiff must establish sexual harassment
of students that is so severe, pervasive, and objectively
offensive, and that so undermines and detracts from the victims'
educational experience, that the victim-students are effectively
denied equal access to an institution's resources and
opportunities. Cf.
Meritor Savings Bank, FSB v.
Vinson, 477 U. S., at 67.
Whether gender-oriented conduct rises to the level of actionable
"harassment" thus "depends on a constellation of surrounding
circumstances, expectations, and relationships,"
Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75, 82 (1998),
including, but not limited to, the ages of the harasser and the
victim and the number of individuals involved, see OCR Title IX
Guidelines 12041-12042. Courts, moreover, must bear in mind that
schools are unlike the adult workplace and that children may
regularly interact in a manner that would be unacceptable among
adults. See,
e. g., Brief for National School Boards
Association et al. as
Amici Curiae 11 (describing "dizzying
array of immature ... behaviors by students"). Indeed, at least
early on, students are still learning how to interact appropriately
with their peers. It is thus understandable that, in the school
setting, students often engage in insults, banter, teasing,
shoving, pushing, and gender-specific conduct that is upsetting to
the students
652
subjected to it. Damages are not available for simple acts of
teasing and name-calling among school children, however, even where
these comments target differences in gender. Rather, in the context
of student-on-student harassment, damages are available only where
the behavior is so severe, pervasive, and objectively offensive
that it denies its victims the equal access to education that Title
IX is designed to protect.
The dissent fails to appreciate these very real limitations on a
funding recipient's liability under Title IX. It is not enough to
show, as the dissent would read this opinion to provide, that a
student has been "teased,"
post, at 678, or "called ...
offensive names,"
post, at 680. Comparisons to an
"overweight child who skips gym class because the other children
tease her about her size," the student who "refuses to wear glasses
to avoid the taunts of 'four-eyes,'" and "the child who refuses to
go to school because the school bully calls him a 'scaredy-cat' at
recess,"
post, at 678, are inapposite and misleading. Nor do
we contemplate, much less hold, that a mere "decline in grades is
enough to survive" a motion to dismiss.
Post, at 677. The
dropoff in LaShonda's grades provides necessary evidence of a
potential link between her education and G. F.'s misconduct, but
petitioner's ability to state a cognizable claim here depends
equally on the alleged persistence and severity of G. F.'s actions,
not to mention the Board's alleged knowledge and deliberate
indifference. We trust that the dissent's characterization of our
opinion will not mislead courts to impose more sweeping liability
than we read Title IX to require.
Moreover, the provision that the discrimination occur "under any
education program or activity" suggests that the behavior be
serious enough to have the systemic effect of denying the victim
equal access to an educational program or activity. Although, in
theory, a single instance of sufficiently severe one-on-one peer
harassment could be said to have such an effect, we think it
unlikely that Congress would
653
have thought such behavior sufficient to rise to this level in
light of the inevitability of student misconduct and the amount of
litigation that would be invited by entertaining claims of official
indifference to a single instance of one-onone peer harassment. By
limiting private damages actions to cases having a systemic effect
on educational programs or activities, we reconcile the general
principle that Title IX prohibits official indifference to known
peer sexual harassment with the practical realities of responding
to student behavior, realities that Congress could not have meant
to be ignored. Even the dissent suggests that Title IX liability
may arise when a funding recipient remains indifferent to severe,
gender-based mistreatment played out on a "widespread level" among
students.
Post, at 683.
The fact that it was a teacher who engaged in harassment in
Franklin and
Gebser is relevant. The relationship
between the harasser and the victim necessarily affects the extent
to which the misconduct can be said to breach Title IX's guarantee
of equal access to educational benefits and to have a systemic
effect on a program or activity. Peer harassment, in particular, is
less likely to satisfy these requirements than is teacher-student
harassment.
C
Applying this standard to the facts at issue here, we conclude
that the Eleventh Circuit erred in dismissing petitioner's
complaint. Petitioner alleges that her daughter was the victim of
repeated acts of sexual harassment by G. F. over a 5-month period,
and there are allegations in support of the conclusion that G. F.'s
misconduct was severe, pervasive, and objectively offensive. The
harassment was not only verbal; it included numerous acts of
objectively offensive touching, and, indeed, G. F. ultimately
pleaded guilty to criminal sexual misconduct. Moreover, the
complaint alleges that there were multiple victims who were
sufficiently disturbed by G. F.'s misconduct to seek an audience
with the school prin-
654
dpal. Further, petitioner contends that the harassment had a
concrete, negative effect on her daughter's ability to receive an
education. The complaint also suggests that petitioner may be able
to show both actual knowledge and deliberate indifference on the
part of the Board, which made no effort whatsoever either to
investigate or to put an end to the harassment.
On this complaint, we cannot say "beyond doubt that [petitioner]
can prove no set of facts in support of [her] claim which would
entitle [her] to relief."
Conley v.
Gibson, 355 U. S.
41, 45-46 (1957). See also
Scheuer v.
Rhodes,
416 U. S. 232,
236 (1974) ("The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims"). Accordingly, the judgment of the United
States Court of Appeals for the Eleventh Circuit is reversed, and
the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JusTICE SCALIA,
and JUSTICE THOMAS join, dissenting.
The Court has held that Congress' power "'to authorize
expenditure of public moneys for public purposes is not limited by
the direct grants of legislative power found in the Constitution.'"
South Dakota v.
Dole, 483 U. S. 203, 207 (1987)
(quoting
United States v.
Butler, 297 U. S. 1, 66 (1936)). As
a consequence, Congress can use its Spending Clause power to pursue
objectives outside of "Article 1's 'enumerated legislative fields'"
by attaching conditions to the grant of federal funds. 483 U. S.,
at 207. So understood, the Spending Clause power, if wielded
without concern for the federal balance, has the potential to
obliterate distinctions between national and local spheres of
interest and power by permitting the Federal Government to set
pol-
655
icy in the most sensitive areas of traditional state concern,
areas which otherwise would lie outside its reach.
A vital safeguard for the federal balance is the requirement
that, when Congress imposes a condition on the States' receipt of
federal funds, it "must do so unambiguously."
Pennhurst State
School and Hospital v.
Halderman, 451 U. S. 1, 17
(1981). As the majority acknowledges, "legislation enacted pursuant
to the spending power is much in the nature of a contract," and the
legitimacy of Congress' exercise of its power to condition funding
on state compliance with congressional conditions "rests on whether
the State voluntarily and knowingly accepts the terms of the
'contract.'"
Ibid.; see
ante, at 640. "'There can, of
course, be no knowing acceptance [of the terms of the putative
contract] if a State is unaware of the conditions [imposed by the
legislation] or is unable to ascertain what is expected of it.'"
Ibid. (quoting
Pennhurst, 451 U. S., at 17).
Our insistence that "Congress speak with a clear voice" to
"enable the States to exercise their choice knowingly, cognizant of
the consequences of their participation,"
ibid., is not
based upon some abstract notion of contractual fairness. Rather, it
is a concrete safeguard in the federal system. Only if States
receive clear notice of the conditions attached to federal funds
can they guard against excessive federal intrusion into state
affairs and be vigilant in policing the boundaries of federal
power. Cf.
Dole, supra, at 217 (O'CONNOR, J., dissenting)
("If the spending power is to be limited only by Congress' notion
of the general welfare, the reality, given the vast financial
resources of the Federal Government, is that the Spending Clause
gives 'power to the Congress to tear down the barriers, to invade
the states' jurisdiction, and to become a parliament of the whole
people, subject to no restrictions save such as are self-imposed'"
(quoting
Butler, supra, at 78)). While the majority purports
to give effect to these principles, it eviscerates the clearnotice
safeguard of our Spending Clause jurisprudence.
656
Title IX provides:
"No person in the United States shall, on the basis of sex, be
[1] excluded from participation in, [2] be denied the benefits of,
or [3] be subjected to discrimination under any education program
or activity receiving Federal financial assistance." 20 U. S. C. §
1681(a).
To read the provision in full is to understand what is most
striking about its application in this case: Title IX does not by
its terms create any private cause of action whatsoever, much less
define the circumstances in which money damages are available. The
only private cause of action under Title IX is judicially implied.
See
Cannon v.
University of Chicago, 441 U. S. 677 (1979).
The Court has encountered great difficulty in establishing
standards for deciding when to imply a private cause of action
under a federal statute which is silent on the subject. We try to
conform the judicial judgment to the bounds of likely congressional
purpose but, as we observed in
Gebser v.
Lago Vista
Independent School Dist., 524 U. S. 274 (1998),
defining the scope of the private cause of action in general, and
the damages remedy in particular, "inherently entails a degree of
speculation, since it addresses an issue on which Congress has not
specifically spoken."
Id., at 284.
When the statute at issue is a Spending Clause statute, this
element of speculation is particularly troubling because it is in
significant tension with the requirement that Spending Clause
legislation give States clear notice of the consequences of their
acceptance of federal funds. Without doubt, the scope of potential
damages liability is one of the most significant factors a school
would consider in deciding whether to receive federal funds.
Accordingly, the Court must not imply a private cause of action for
damages unless it can demonstrate that the congressional purpose to
create the implied cause of action is so manifest that the
State,
657
when accepting federal funds, had clear notice of the terms and
conditions of its monetary liability.
Today the Court fails to heed, or even to acknowledge, these
limitations on its authority. The remedial scheme the majority
creates today is neither sensible nor faithful to Spending Clause
principles. In order to make its case for school liability for peer
sexual harassment, the majority must establish that Congress gave
grant recipients clear and unambiguous notice that they would be
liable in money damages for failure to remedy discriminatory acts
of their students. The majority must also demonstrate that the
statute gives schools clear notice that one child's harassment of
another constitutes "discrimination" on the basis of sex within the
meaning of Title IX, and that-as applied to individual cases-the
standard for liability will enable the grant recipient to
distinguish inappropriate childish behavior from actionable gender
discrimination. The majority does not carry these burdens.
Instead, the majority finds statutory clarity where there is
none and discovers indicia of congressional notice to the States in
the most unusual of places. It treats the issue as one of routine
statutory construction alone, and it errs even in this regard. In
the end, the majority not only imposes on States liability that was
unexpected and unknown, but the contours of which are, as yet,
unknowable. The majority's opinion purports to be narrow, but the
limiting principles it proposes are illusory. The fence the Court
has built is made of little sticks, and it cannot contain the
avalanche of liability now set in motion. The potential costs to
our schools of today's decision are difficult to estimate, but they
are so great that it is most unlikely Congress intended to inflict
them.
The only certainty flowing from the majority's decision is that
scarce resources will be diverted from educating our children and
that many school districts, desperate to avoid Title IX peer
harassment suits, will adopt whatever federal code of student
conduct and discipline the Department of Ed-
658
ucation sees fit to impose upon them. The Nation's
schoolchildren will learn their first lessons about federalism in
classrooms where the Federal Government is the everpresent
regulator. The Federal Government will have insinuated itself not
only into one of the most traditional areas of state concern but
also into one of the most sensitive areas of human affairs. This
federal control of the discipline of our Nation's schoolchildren is
contrary to our traditions and inconsistent with the sensible
administration of our schools. Because Title IX did not give States
unambiguous notice that accepting federal funds meant ceding to the
Federal Government power over the day-to-day disciplinary decisions
of schools, I dissent.
I
I turn to the first difficulty with the majority's decision.
Schools cannot be held liable for peer sexual harassment because
Title IX does not give them clear and unambiguous notice that they
are liable in damages for failure to remedy discrimination by their
students. As the majority acknowledges, Title IX prohibits only
misconduct by grant recipients, not misconduct by third parties.
Ante, at 640-641 ("The recipient itself must 'exclud[e]
[persons] from participation in, ... den[y] [persons] the benefits
of, or ... subjec[t] [persons] to discrimination under' its
'program[s] or activit[iesJ' in order to be liable under Title
IX"). The majority argues, nevertheless, that a school "subjects"
its students to discrimination when it knows of peer harassment and
fails to respond appropriately.
The mere word "subjected" cannot bear the weight of the
majority's argument. As we recognized in
Gebser, the primary
purpose of Title IX is "to prevent recipients of federal financial
assistance from using the funds in a discriminatory manner." 524 U.
S., at 292. We stressed in
Gebser that Title IX prevents
discrimination by the grant recipient, whether through the acts of
its principals or the acts of its agents. See id., at 286
(explaining that Title IX and Title VI
659
"operate in the same manner, conditioning an offer of federal
funding on a promise by the recipient not to discriminate, in what
amounts essentially to a contract between the Government and the
recipient of funds"). "[W]hereas Title VII aims centrally to
compensate victims of discrimination, Title IX focuses more on
'protecting' individuals from discriminatory practices carried out
by recipients of federal funds."
Id., at 287. The majority
does not even attempt to argue that the school's failure to respond
to discriminatory acts by students is discrimination by the school
itself.
A
In any event, a plaintiff cannot establish a Title IX violation
merely by showing that she has been "subjected to discrimination."
Rather, a violation of Title IX occurs only if she is "subjected to
discrimination under any education program or activity," 20 U. S.
C. § 1681(a), where "program or activity" is defined as "all of the
operations of" a grant recipient, § 1687.
Under the most natural reading of this provision, discrimination
violates Title IX only if it is authorized by, or in accordance
with, the actions, activities, or policies of the grant recipient.
See Webster's Third New International Dictionary 2487 (1981)
(defining "under" as "required by: in accordance with: bound by");
American Heritage Dictionary 1395 (New College ed. 1981) (defining
"under" as "[w]ith the authorization of; attested by; by virtue
of"); Random House Dictionary of the English Language 2059 (2d ed.
1987) (defining "under" as "authorized, warranted, or attested by"
or "in accordance with"); see also 43 Words and Phrases 149152
(1969) (citing cases defining "under" as,
inter alia, "'in
accordance with' and 'in conformity with'''; "indicating
subjection, guidance or control, and meaning 'by authority of''';
"'by,' 'by reason of,' or 'by means of'''; and" 'by virtue of,'
which is defined ... as meaning 'by or through the authority of'
"). This reading reflects the common legal usage of the
660
term "under" to mean pursuant to, in accordance with, or as
authorized or provided by. See,
e. g., Gregory v.
Ashcroft, 501
U. S. 452, 469 (1991) ("Because Congress nowhere stated its
intent to impose mandatory obligations on the States under its § 5
powers, we concluded that Congress did not do so");
ante, at
632 ("Among petitioner's claims was a claim for monetary and
injunctive relief under Title IX ... ").
It is not enough, then, that the alleged discrimination occur in
a "context subject to the school district's control."
Ante,
at 645. The discrimination must actually be "controlled by"-that
is, be authorized by, pursuant to, or in accordance with, school
policy or actions. Compare
ante, at 645 (defining "under" as
"in or into
a condition of subjection, regulation, or
subordination" (emphasis added)), with
ibid. (defining
"under" as
"subject to the guidance and instruction of"
(emphasis added)).
This reading is also consistent with the fact that the
discrimination must be "under" the "operations" of the grant
recipient. The term "operations" connotes active and affirmative
participation by the grant recipient, not merely inaction or
failure to respond. See Black's Law Dictionary 1092 (6th ed. 1990)
(defining "operation" as an "[e]xertion of power; the process of
operating or mode of action; an effect brought about in accordance
with a definite plan; action; activity").
Teacher sexual harassment of students is "under" the school's
program or activity in certain circumstances, but student
harassment is not. Our decision in
Gebser recognizes that a
grant recipient acts through its agents and thus, under certain
limited circumstances, even tortious acts by teachers may be
attributable to the school. We noted in
Gebser that, in
contrast to Title VII, which defines "employer" to include "any
agent"-Title IX "contains no comparable reference to an educational
institution's 'agents,' and so does not expressly call for
application of agency principles." 524 U. S., at 283. As a result,
we declined to incor-
661
porate principles of agency liability, such as a strict
application of vicarious liability, that would conflict with the
Spending Clause's notice requirement and Title IX's express
administrative enforcement scheme.
Contrary to the majority's assertion,
ante, at 643,
however, we did not abandon agency principles altogether. Rather,
we sought in
Gebser to identify those employee actions which
could fairly be attributed to the grant recipient by superimposing
additional Spending Clause notice requirements on traditional
agency principles. 524 U. S., at 288 ("Title IX contains important
clues that Congress did not intend to allow recovery in damages
where liability rests solely on principles of vicarious liability
or constructive notice"). We concluded that, because of the
Spending Clause overlay, a teacher's discrimination is attributable
to the school only when the school has actual notice of that
harassment and is "deliberately indifferent." The agency relation
between the school and the teacher is thus a necessary, but not
sufficient, condition of school liability. Where the heightened
requirements for attribution are met, the teacher's actions are
treated as the grant recipient's actions. In those circumstances,
then, the teacher sexual harassment is "under" the operations of
the school.
I am aware of no basis in law or fact, however, for attributing
the acts of a student to a school and, indeed, the majority does
not argue that the school acts through its students. See
ante, at 641 ("We disagree with respondents' assertion ...
that petitioner seeks to hold the Board liable for G. F.'s actions
instead of its own. Here, petitioner attempts to hold the Board
liable for its
own decision to remain idle in the face of
known student-on-student harassment in its schools").
Discrimination by one student against another therefore cannot be
"under" the school's program or activity as required by Title IX.
The majority's imposition of liability for peer sexual harassment
thus conflicts with the most natural interpretation of Title IX's
"under a program
662
or activity" limitation on school liability. At the very least,
my reading undermines the majority's implicit claim that Title IX
imposes an unambiguous duty on schools to remedy peer sexual
harassment.
B 1
Quite aside from its disregard for the "under the program"
limitation of Title IX, the majority's reading is flawed in other
respects. The majority contends that a school's deliberate
indifference to known student harassment "subjects" students to
harassment-that is, "cause[s] [students] to undergo" harassment.
Ante, at 645. The majority recognizes, however, that there
must be some limitation on the third-party conduct that the school
can fairly be said to cause. In search of a principle, the majority
asserts, without much elaboration, that one causes discrimination
when one has some "degree of control" over the discrimination and
fails to remedy it.
Ante, at 644.
To state the majority's test is to understand that it is little
more than an exercise in arbitrary line-drawing. The majority does
not explain how we are to determine what degree of control is
sufficient-or, more to the point, how the States were on clear
notice that the Court would draw the line to encompass
students.
Agency principles usually mark the outer limits of an entity's
liability for the actions of an individual over whom it exercises
some control. Cf.
Faragher v.
Boca Raton, 524 U. S.
775 (1998) (applying agency principles to delimit Title VII
employer liability);
Burlington Industries, Inc. v.
Ellerth, 524
U. S. 742 (1998) (same). The Court, for example, has not
recognized liability for the actions of nonagents under Title VII,
which contains an express private right of action and is not
Spending Clause legislation. The majority nonetheless rejects
out-of-hand an agency limitation on Title IX liability based on its
cramped reading of
Gebser. As
663
noted above, the
Gebser Court rejected the wholesale
importation of federal common-law agency principles into Title IX
to expand liability beyond that which the statute clearly
prohibited; it did not, as the majority would have it, reject the
proposition that school liability is limited by agency principles.
Indeed, to suppose that Congress would have rejected
well-established principles of agency law in favor of the
majority's vague control principle turns
Gebser on its head.
Gebser contemplated that Title IX liability would be less
expansive than Title VII liability, not more so. See
Gebser,
supra, at 286-287.
One would think that the majority would at least limit its
control principle by reference to the long-established practice of
the Department of Education (DOE). For the first 25 years after the
passage of Title IX-until 1997-the DOE's regulations drew the
liability line, at its most expansive, to encompass only those to
whom the school delegated its official functions. See 34 CFR §
106.51(a)(3) (1998) ("A [grant] recipient shall not enter into any
contractual or other relationship which directly or indirectly has
the effect of subjecting employees or students to discrimination
prohibited by this subpart, including relationships with employment
and referral agencies, with labor unions, and with organizations
providing or administering fringe benefits to employees of the
recipient"). It is perhaps reasonable to suppose that grant
recipients were on notice that they could not hire third parties to
do for them what they could not do themselves. For example, it
might be reasonable to find that a school was on notice that it
could not circumvent Title IX's core prohibitions by, for example,
delegating its admissions decisions to an outside screening
committee it knew would discriminate on the basis of gender.
Given the state of gender discrimination law at the time Title
IX was passed, however, there is no basis to think that Congress
contemplated liability for a school's failure to remedy
discriminatory acts by students or that the States would
664
believe the statute imposed on them a clear obligation to do so.
When Title IX was enacted in 1972, the concept of "sexual
harassment" as gender discrimination had not been recognized or
considered by the courts. See generally C. MacKinnon, Sexual
Harassment of Working Women: A Case of Sex Discrimination 59-72
(1979). The types of discrimination that were
recognized-discriminatory admissions standards, denial of access to
programs or resources, hiring, etc.-could not be engaged in by
students. See,
e. g., 20 U. S. C. § 1681(a)(2) (referencing
application of Title IX prohibitions to school admissions).
2
The majority nonetheless appears to see no need to justify
drawing the "enough control" line to encompass students. In truth,
however, a school's control over its students is much more
complicated and limited than the majority acknowledges. A public
school does not control its students in the way it controls its
teachers or those with whom it contracts. Most public schools do
not screen or select students, and their power to discipline
students is far from unfettered.
Public schools are generally obligated by law to educate all
students who live within defined geographic boundaries. Indeed, the
Constitution of almost every State in the country guarantees the
State's students a free primary and secondary public education.
See,
e. g., Cal. Const., Art. IX, § 5; Colo. Const., Art.
IX, § 2; Ga. Const., Art. VIII, § 1, ~ 1; Ind. Const., Art. VIII, §
1; Md. Const., Art. VIII, § 1; Mo. Const., Art. IX, § l(a); Neb.
Const., Art. VII, § 1; N. J. Const., Art. VIII, § 4, ~ 1; N. M.
Const., Art. XII, § 1; N. Y. Const., Art. XI, § 1; N. D. Const.,
Art. VIII, §§ 1 and 2; Okla. Const., Art. XIII, § 1; S. C. Const.,
Art. XI, § 3; Tex. Const., Art. VII, § 1; Va. Const., Art. VIII, §
1; Wash. Const., Art. IX, §§ 1 and 2; Wyo. Const., Art. VII, §§ 1
and 9. In at least some States, moreover, there is a continuing
duty on schools to educate even students who are suspended or
expelled. See,
e. g.,
665
Phillip Leon M. v.
Board of Education, 199 W. Va.
400, 484 S. E. 2d 909 (1996) (holding that the education clause of
the West Virginia Constitution confers on students a fundamental
right to an education and requires that a county school board
provide alternative educational programs, such as an alternative
school, to students who are expelled or suspended for an extended
period for bringing guns to school). Schools that remove a harasser
from the classroom and then attempt to fulfill their
continuing-education obligation by placing the harasser in any kind
of group setting, rather than by hiring expensive tutors for each
student, will find themselves at continuing risk of Title IX suits
brought by the other students in the alternative education
program.
In addition, federal law imposes constraints on school
disciplinary actions. This Court has held, for example, that due
process requires, "[a]t the very minimum," that a student facing
suspension "be given some kind of notice and afforded some kind of
hearing."
Goss v.
Lopez, 419 U. S. 565, 579
(1975).
The Individuals with Disabilities Education Act (IDEA), 20 U. S.
C. § 1400
et seq. (1994 ed., Supp. III), moreover, places
strict limits on the ability of schools to take disciplinary
actions against students with behavior disorder disabilities, even
if the disability was not diagnosed prior to the incident
triggering discipline. See,
e. g., § 1415(f)(1) (parents
entitled to hearing when school proposes to change disabled
student's educational placement); § 1415(k)(1)(A) (school
authorities can only "order a change in the placement of a child
with a disability ... to an appropriate interim alternative
educational setting, another setting, or suspension" for up to "10
school days" unless student's offense involved a weapon or illegal
drugs); § 1415(k)(8) ("[A] child who has not been determined to be
eligible for special education ... and who has engaged in behavior
that violated any [school rule] may assert any of the protections"
of the subchapter if the school "had knowledge ... that the child
was a child with a disabil-
666
ity before the behavior that precipitated the disciplinary
action occurred"); § 1415(k)(8)(B)(ii) (school "deemed to have
knowledge that a child is a child with a disability if ... the
behavior or performance of the child demonstrates the need for such
[special education and related] services"). "Disability," as
defined in the IDEA, includes "serious emotional disturbance," §
1401(3)(A)(i), which the DOE, in turn, has defined as a "condition
exhibiting ... over a long period of time and to a marked degree
that adversely affects a child's educational performance," an
"inability to build or maintain satisfactory interpersonal
relationships with peers and teachers," or "[i]nappropriate types
of behavior or feelings under normal circumstances." 34 CFR §
300.7(b)(9) (1998). If, as the majority would have us believe, the
behavior that constitutes actionable peer sexual harassment so
deviates from the normal teasing and jostling of adolescence that
it puts schools on clear notice of potential liability, then a
student who engages in such harassment may have at least a
colorable claim of severe emotional disturbance within the meaning
of the IDEA. When imposing disciplinary sanction on a student
harasser who might assert a colorable IDEA claim, the school must
navigate a complex web of statutory provisions and DOE regulations
that significantly limit its discretion.
The practical obstacles schools encounter in ensuring that
thousands of immature students conform their conduct to acceptable
norms may be even more significant than the legal obstacles. School
districts cannot exercise the same measure of control over
thousands of students that they do over a few hundred adult
employees. The limited resources of our schools must be conserved
for basic educational services. Some schools lack the resources
even to deal with serious problems of violence and are already
overwhelmed with disciplinary problems of all kinds.
Perhaps even more startling than its broad assumptions about
school control over primary and secondary school stu-
667
dents is the majority's failure to grapple in any meaningful way
with the distinction between elementary and secondary schools, on
the one hand, and universities on the other. The majority bolsters
its argument that schools can control their students' actions by
quoting our decision in
Vernonia School Dist. J,7J v.
Acton, 515 U.
S. 646, 655 (1995), for the proposition that "'the nature of
[the State's] power [over public school children] is custodial and
tutelary, permitting a degree of supervision and control that could
not be exercised over free adults.'"
Ante, at 646. Yet the
majority's holding would appear to apply with equal force to
universities, which do not exercise custodial and tutelary power
over their adult students.
A university's power to discipline its students for speech that
may constitute sexual harassment is also circumscribed by the First
Amendment. A number of federal courts have already confronted
difficult problems raised by university speech codes designed to
deal with peer sexual and racial harassment. See,
e. g.,
Dambrot v.
Central Mich. Univ., 55 F. 3d 1177 (CA6 1995)
(striking down university discriminatory harassment policy because
it was overbroad, vague, and not a valid prohibition on fighting
words);
UWM Post, Inc. v.
Board of Regents of Univ. of
Wis. System, 774 F. Supp. 1163 (ED Wis. 1991) (striking down
university speech code that prohibited,
inter alia,
"'discriminatory comments'" directed at an individual that"
'intentionally ... demean'" the "'sex ... of the individual''' and"
'[c]reate an intimidating, hostile or demeaning environment for
education, university related work, or other university-authorized
activity' ");
Doe v.
University of Mich., 721 F.
Supp. 852 (ED Mich. 1989) (similar);
Iota XI Chapter of Sigma
Chi Fraternity v.
George Mason Univ., 993 F.2d
386 (CA4 1993) (overturning on First Amendment grounds
university's sanctions on a fraternity for conducting an "ugly
woman contest" with "racist and sexist" overtones).
668
The difficulties associated with speech codes simply underscore
the limited nature of a university's control over student behavior
that may be viewed as sexual harassment. Despite the fact that the
majority relies on the assumption that schools exercise a great
deal of control over their students to justify creating the private
cause of action in the first instance, it does not recognize the
obvious limits on a university's ability to control its students as
a reason to doubt the propriety of a private cause of action for
peer harassment. I t simply uses them as a factor in determining
whether the university's response was reasonable. See
ante,
at 649.
3
The majority's presentation of its control test illustrates its
own discomfort with the rule it has devised. Rather than beginning
with the language of Title IX itself, the majority begins with our
decision in
Gebser and appears to discover there a sweeping
legal duty-divorced from agency principles-for schools to remedy
third-party discrimination against students. The majority then
finds that the DOE's Title IX regulations and state common law gave
States the requisite notice that they would be liable in damages
for failure to fulfill this duty. Only then does the majority turn
to the language of Title IX itself-not, it appears, to find a duty
or clear notice to the States, for that the majority assumes has
already been established, but rather to suggest a limit on the
breathtaking scope of the liability the majority thinks is so clear
under the statute. See
ante, at 645 ("These factors
[("subjects" and "under")] combine to limit a recipient's damages
liability to circumstances wherein the recipient exercises
substantial control over both the harasser and the context in which
the known harassment occurs").
Our decision in
Gebser did not, of course, recognize some
ill-defined, freestanding legal duty on schools to remedy
discrimination by third parties. In particular,
Gebser gave
schools no notice whatsoever that they might be liable on the
669
majority's novel theory that a school "subjects" a student to
third-party discrimination if it exercises some measure of control
over the third party. We quoted the "subjected to discrimination"
language only once in
Gebser, when we quoted the text of
Title IX in full, and we did not use the word "control." Instead,
we affirmed that Title IX prohibits discrimination by the grant
recipient. See
Gebser, 524 U. S., at 286; id., at 291-292;
supra, at 658-659.
Neither the DOE's Title IX regulations nor state tort law,
moreover, could or did provide States the notice required by our
Spending Clause principles. The majority contends that the DOE's
Title IX regulations have "long provided funding recipients with
notice that they may be liable for their failure to respond to the
discriminatory acts of certain nonagents."
Ante, at 643.
Even assuming that DOE regulations could give schools the requisite
notice, they did not do so. Not one of the regulations the majority
cites suggests that schools may be held liable in money damages for
failure to respond to third-party discrimination.
In addition, as discussed above, the DOE regulations provide no
support for the proposition that schools were on notice that
students were among those "nonagents" whose actions the schools
were bound to remedy. Most of the regulations cited by the majority
merely forbid grant recipients to give affirmative aid to third
parties who discriminate. See 34 CFR § 106.31(b)(6) (1998) (A grant
"recipient shall not, on the basis of sex," "[a]id 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, benefit or
service to students or employees"); see also § 106.37(a)(2) (A
grant recipient shall not, "[t]hrough solicitation, listing,
approval, provision of facilities or other services, assist any
foundation, trust, agency, organization, or person which provides
assistance to any of such recipient's students in a manner which
discriminates on the basis of sex"); § 106.38(a) (A grant
recip-
670
ient "which assists any agency, organization or person in making
employment available to any of its students [s]hall assure itself
that such employment is made available without discrimination on
the basis of sex [and] [s]hall not render such services to any
agency, organization, or person which discriminates on the basis of
sex in its employment practices"). The others forbid grant
recipients to delegate the provision of student (or employee)
benefits and services to third parties who engage in gender
discrimination in administering what is, in effect, the school's
program. See § l06.51(a)(3) ("A [grant] recipient shall not enter
into any contractual or other relationship which directly or
indirectly has the effect of subjecting employees or students to
discrimination prohibited by this subpart, including relationships
with employment and referral agencies, with labor unions, and with
organizations providing or administering fringe benefits to
employees of the recipient"); see also § l06.31(d) (A grant
recipient "which requires participation by any applicant, student,
or employee in any education program or activity not operated
wholly by such recipient, or which facilitates, permits, or
considers such participation as part of or equivalent to an
education program or activity operated by such recipient, including
participation in educational consortia and cooperative employment
and student-teaching assignments" must take steps to assure itself
that the education program or activity is not discriminating on the
basis of gender and "shall not facilitate, require, permit, or
consider such participation" if the program is discriminating).
None of the regulations suggests a generalized duty to remedy
discrimination by third parties over whom the school may arguably
exercise some control.
Requiring a school to take affirmative steps to remedy
harassment by its students imposes a much heavier burden on schools
than prohibiting affirmative aid or effective delegation of school
functions to an entity that discriminates. Notice of these latter
responsibilities, then, can hardly be said
671
to encompass clear notice of the former. In addition, each of
the DOE regulations is predicated on a grant recipient's choice to
give affirmative aid to, or to enter into voluntary association
with, a discriminating entity. The recipient, moreover, as the
regulations envision, is free to terminate that aid or association
(or could have so provided through contract). The relationships
regulated by the DOE are thus quite different from school-student
relationships. The differences confirm that the regulations did not
provide adequate notice of a duty to remedy student
discrimination.
The majority also concludes that state tort law provided States
the requisite notice. It is a non sequitur to suppose, however,
that a State knows it is liable under a federal statute simply
because the underlying conduct might form the basis for a state
tort action. In any event, it is far from clear that Georgia law
gave the Monroe County Board of Education notice that it would be
liable even under state law for failure to respond reasonably to
known student harassment. See,
e. g.,
Holbrook v.
Executive Conference Center, Inc., 219 Ga. App. 104, 106,
464 S. E. 2d 398, 401 (1996) (holding that school districts are
entitled to sovereign immunity for claims based on their
supervision of students unless the school displayed "wilfulness,
malice, or corruption").
The majority's final observation about notice confirms just how
far it has strayed from the basic Spending Clause principle that
Congress must, through the clear terms of the statute, give States
notice as to what the statute requires. The majority contends that
schools were on notice because they "were being told" by a 1993
National School Boards Association publication that peer sexual
harassment might trigger Title IX liability.
Ante, at 647.
By treating a publication designed to help school lawyers prevent
and guard against school liability as a reliable indicium of
congressional notice, the majority has transformed a litigation
manual-which, like all such manuals, errs on the side of caution in
describing potential liability-into a self-fulfilling prophecy. It
seems
672
schools cannot even discuss potential liabilities amongst
themselves without somehow stipulating that Congress had some
specified intent.
II
Our decision in
Gebser makes clear that the Spending
Clause clear-notice rule requires both that the recipients be on
general notice of the kind of conduct the statute prohibits, and-at
least when money damages are sought-that they be on notice that
illegal conduct is occurring in a given situation. See,
e.
g.,
Gebser, 524 U. S., at 287-288 (rejecting vicarious
liability because it would hold schools liable even when they did
not know that prohibited discrimination was occurring).
Title IX, however, gives schools neither notice that the conduct
the majority labels peer "sexual harassment" is gender
discrimination within the meaning of the Act nor any guidance in
distinguishing in individual cases between actionable
discrimination and the immature behavior of children and
adolescents. The majority thus imposes on schools potentially
crushing financial liability for student conduct that is not
prohibited in clear terms by Title IX and that cannot, even after
to day's opinion, be identified by either schools or courts with
any precision.
The law recognizes that children-particularly young children-are
not fully accountable for their actions because they lack the
capacity to exercise mature judgment. See,
e. g., 1 E.
Farnsworth, Contracts § 4.4 (2d ed. 1998) (discussing minor's
ability to disaffirm a contract into which he has entered). It
should surprise no one, then, that the schools that are the primary
locus of most children's social development are rife with
inappropriate behavior by children who are just learning to
interact with their peers. The
amici on the front lines of
our schools describe the situation best:
"Unlike adults in the workplace, juveniles have limited life
experiences or familial influences upon which to es-
673
tablish an understanding of appropriate behavior. The real world
of school discipline is a rough-and-tumble place where students
practice newly learned vulgarities, erupt with anger, tease and
embarrass each other, share offensive notes, flirt, push and shove
in the halls, grab and offend." Brief for National School Boards
Association et al. as Amici Curiae 10-11 (hereinafter Brief
for School Amici).
No one contests that much of this "dizzying array of immature or
uncontrollable behaviors by students,"
ibid., is
inappropriate, even "objectively offensive" at times,
ante,
at 650, and that parents and schools have a moral and ethical
responsibility to help students learn to interact with their peers
in an appropriate manner. It is doubtless the case, moreover, that
much of this inappropriate behavior is directed toward members of
the opposite sex, as children in the throes of adolescence struggle
to express their emerging sexual identities.
It is a far different question, however, whether it is either
proper or useful to label this immature, childish behavior gender
discrimination. Nothing in Title IX suggests that Congress even
contemplated this question, much less answered it in the
affirmative in unambiguous terms.
The majority, nevertheless, has no problem labeling the conduct
of fifth graders "sexual harassment" and "gender discrimination."
Indeed, the majority sidesteps the difficult issue entirely, first
by asserting without analysis that respondents do not "support an
argument that student-onstudent harassment cannot rise to the level
of discrimination' for purposes of Title IX,"
ante, at 639,
and then by citing
Gebser and
Franklin v.
Gwinnett
County Public Schools, 503 U. S. 60 (1992), for
the proposition that "[w]e have elsewhere concluded that sexual
harassment is a form of discrimination for Title IX purposes and
that Title IX proscribes harassment with sufficient clarity to
satisfy
Pennhurst's no-
674
tice requirement and serve as a basis for a damages action,"
ante, at 649-650.
Contrary to the majority's assertion, however, respondents have
made a cogent and persuasive argument that the type of student
conduct alleged by petitioner should not be considered "sexual
harassment," much less gender discrimination actionable under Title
IX:
"[A]t the time Petitioner filed her complaint, no court,
including this Court had recognized the concept of sexual
harassment in any context other than the employment context. Nor
had any Court extended the concept of sexual harassment to the
misconduct of emotionally and socially immature children. The type
of conduct alleged by Petitioner in her complaint is not new.
However, in past years it was properly identified as misconduct
which was addressed within the context of student discipline. The
Petitioner now asks this Court to create out of whole cloth a cause
of action by labeling childish misconduct as 'sexual harassment,'
to stigmatize children as sexual harassers, and have the federal
court system take on the additional burden of second guessing the
disciplinary actions taken by school administrators in addressing
misconduct, something this Court has consistently refused to do."
Brief for Respondents 12-13 (citation omitted).
See also Brief for Independent Women's Forum as
Amicus
Curiae 19 (questioning whether "at the primary and secondary
school level" it is proper to label "sexual misconduct by students"
as "sexual harassment" because there is no power relationship
between the harasser and the victim).
Likewise, the majority's assertion that
Gebser and
Franklin settled the question is little more than
ipse
dixit. Gebser and
Franklin themselves did nothing more
than cite
Meritor Savings Bank, FSB v.
Vinson,
477 U. S. 57, 64
(1986), a Title VII case, for the proposition that "when a su-
675
pervisor sexually harasses a subordinate because of the
subordinate's sex, that supervisor 'discriminate[sJ' on the basis
of sex." See
Franklin, supra, at 74;
Gebser, 524 U.
S., at 282-283. To treat that proposition as establishing that the
student conduct at issue here is gender discrimination is to erase,
in one stroke, all differences between children and adults, peers
and teachers, schools and workplaces.
In reality, there is no established body of federal or state law
on which courts may draw in defining the student conduct that
qualifies as Title IX gender discrimination. Analogies to Title VII
hostile environment harassment are inapposite, because schools are
not workplaces and children are not adults. The norms of the adult
workplace that have defined hostile environment sexual harassment,
see,
e. g.,
Oncale v.
Sundowner Offshore Services,
Inc., 523 U. S.
75 (1998), are not easily translated to peer relationships in
schools, where teenage romantic relationships and dating are a part
of everyday life. Analogies to Title IX teacher sexual harassment
of students are similarly flawed. A teacher's sexual overtures
toward a student are always inappropriate; a teenager's romantic
overtures to a classmate (even when persistent and unwelcome) are
an inescapable part of adolescence.
The majority admits that, under its approach, "[w]hether
gender-oriented conduct rises to the level of actionable
'harassment' ... 'depends on a constellation of surrounding
circumstances, expectations, and relationships,' including, but not
limited to, the ages of the harasser and the victim and the number
of individuals involved."
Ante, at 651 (citations omitted).
The majority does not explain how a school is supposed to discern
from this mishmash of factors what is actionable discrimination.
Its multifactored balancing test is a far cry from the clarity we
demand of Spending Clause legislation.
The difficulties schools will encounter in identifying peer
sexual harassment are already evident in teachers' manuals
676
designed to give guidance on the subject. For example, one
teachers' manual on peer sexual harassment suggests that sexual
harassment in kindergarten through third grade includes a boy being
"put down" on the playground "because he wants to play house with
the girls" or a girl being "put down because she shoots baskets
better than the boys." Minnesota Dept. of Education, Girls and Boys
Getting Along:
Teaching Sexual Harassment Prevention in the Elementary
Classroom 65 (1993). Yet another manual suggests that one student
saying to another, "You look nice," could be sexual harassment,
depending on the "tone of voice," how the student looks at the
other, and "who else is around." N. Stein & L. Sjostrom,
Flirting or Hurting? A Teacher's Guide on Student-to-Student Sexual
Harassment in Schools (Grades 6 through 12), p. 14 (1994). Blowing
a kiss is also suspect.
Ibid. This confusion will likely be
compounded once the sexual harassment label is invested with the
force of federal law, backed up by private damages suits.
The only guidance the majority gives schools in distinguishing
between the "simple acts of teasing and namecalling among school
children," said not to be a basis for suit even when they "target
differences in gender,"
ante, at 652, and actionable peer
sexual harassment is, in reality, no guidance at all. The majority
proclaims that "in the context of student-on-student harassment,
damages are available only where the behavior is so severe,
pervasive, and objectively offensive that it denies its victims the
equal access to education that Title IX is designed to protect."
Ibid. The majority does not even purport to explain,
however, what constitutes an actionable denial of "equal access to
education." Is equal access denied when a girl who tires of being
chased by the boys at recess refuses to go outside? When she cannot
concentrate during class because she is worried about the recess
activities? When she pretends to be sick one day so she can stay
home from school? It appears the majority is content to let juries
decide.
677
The majority's reference to a "systemic effect,"
ante, at
653, does nothing to clarify the content of its standard. The
majority appears to intend that requirement to do no more than
exclude the possibility that a single act of harassment perpetrated
by one student on one other student can form the basis for an
actionable claim. That is a small concession indeed.
The only real clue the majority gives schools about the dividing
line between actionable harassment that denies a victim equal
access to education and mere inappropriate teasing is a profoundly
unsettling one: On the facts of this case, petitioner has stated a
claim because she alleged, in the majority's words, "that the
harassment had a concrete, negative effect on her daughter's
ability to receive an education."
Ante, at 654. In
petitioner's words, the effects that might have been visible to the
school were that her daughter's grades "dropped" and her "ability
to concentrate on her school work [was] affected." App. to Pet. for
Cert. 97a. Almost all adolescents experience these problems at one
time or another as they mature.
III
The majority's inability to provide any workable definition of
actionable peer harassment simply underscores the myriad ways in
which an opinion that purports to be narrow is, in fact, so broad
that it will support untold numbers of lawyers who will prove adept
at presenting cases that will withstand the defendant school
districts' pretrial motions. Each of the barriers to runaway
litigation the majority offers us crumbles under the weight of even
casual scrutiny.
For example, the majority establishes what sounds like a
relatively high threshold for liability-"denial of equal access" to
education-and, almost in the same breath, makes clear that alleging
a decline in grades is enough to survive Federal Rule of Civil
Procedure 12(b)(6) and, it follows, to state a winning claim. The
majority seems oblivious to the
678
fact that almost every child, at some point, has trouble in
school because he or she is being teased by his or her peers. The
girl who wants to skip recess because she is teased by the boys is
no different from the overweight child who skips gym class because
the other children tease her about her size in the locker room; or
the child who risks flunking out because he refuses to wear glasses
to avoid the taunts of "foureyes"; or the child who refuses to go
to school because the school bully calls him a "scaredy-cat" at
recess. Most children respond to teasing in ways that detract from
their ability to learn. The majority's test for actionable
harassment will, as a result, sweep in almost all of the more
innocuous conduct it acknowledges as a ubiquitous part of school
life.
The string of adjectives the majority attaches to the word
"harassment"-"severe, pervasive, and objectively offensive"
-likewise fails to narrow the class of conduct that can trigger
liability, since the touchstone for determining whether there is
Title IX liability is the effect on the child's ability to get an
education.
Ante, at 650. Indeed, the Court's reliance on the
impact on the child's educational experience suggests that the
"objective offensiveness" of a comment is to be judged by reference
to a reasonable child at whom the comments were aimed. Not only is
that standard likely to be quite expansive, it also gives
schools-and juries-little guidance, requiring them to attempt to
gauge the sensitivities of, for instance, the average
seven-year-old.
The majority assures us that its decision will not interfere
with school discipline and instructs that, "as we have previously
noted, courts should refrain from second-guessing the disciplinary
decisions made by school administrators."
Ante, at 648. The
obvious reason for the majority's expressed reluctance to allow
courts and litigants to secondguess school disciplinary decisions
is that school officials are usually in the best position to judge
the seriousness of alleged harassment and to devise an appropriate
response. The problem is that the majority's test, in fact, invites
courts
679
and juries to second-guess school administrators in every case,
to judge in each instance whether the school's response was
"clearly unreasonable." A reasonableness standard, regardless of
the modifier, transforms every disciplinary decision into a jury
question. Cf.
Doe v.
University of Illinois,
138 F.3d
653, 655 (CA7 1998) (holding that college student had stated a
Title IX claim for peer sexual harassment even though school
officials had suspended two male students for 10 days and
transferred another out of her biology class).
Another professed limitation the majority relies upon is that
the recipient will be liable only where the acts of student
harassment are "known." See,
e. g.,
ante, at 644,
647. The majority's enunciation of the standard begs the obvious
question: known to whom? Yet the majority says not one word about
the type of school employee who must know about the harassment
before it is actionable.
The majority's silence is telling. The deliberate indifference
liability we recognized in
Gebser was predicated on notice
to "an official of the recipient entity with authority to take
corrective action to end the discrimination." 524 U. S., at 290.
The majority gives no indication that it believes the standard to
be any different in this context and-given its extensive reliance
on the
Gebser standard throughout the opinion-appears to
adopt the
Gebser notice standard by implication. At least
the courts adjudicating Title IX peer harassment claims are likely
to so conclude.
By choosing not to adopt the standard in explicit terms, the
majority avoids having to confront the bizarre implications of its
decision. In the context of teacher harassment, the
Gebser
notice standard imposes some limit on schoolliability. Where peer
harassment is the discrimination, however, it imposes no limitation
at all. In most cases of student misbehavior, it is the teacher who
has authority, at least in the first instance, to punish the
student and take other measures to remedy the harassment. The
anomalous result will be that, while a school district cannot be
held liable for
680
a teacher's sexual harassment of a student without notice to the
school board (or at least to the principal), the district can be
held liable for a teacher's failure to remedy peer harassment. The
threshold for school liability, then, appears to be lower when the
harasser is a student than when the harasser is a teacher who is an
agent of the school. The absurdity of this result confirms that it
was neither contemplated by Congress nor anticipated by the
States.
The majority's limitations on peer sexual harassment suits
cannot hope to contain the flood of liability the Court today
begins. The elements of the Title IX claim created by the majority
will be easy not only to allege but also to prove. A female
plaintiff who pleads only that a boy called her offensive names,
that she told a teacher, that the teacher's response was
unreasonable, and that her school performance suffered as a result,
appears to state a successful claim.
There will be no shortage of plaintiffs to bring such
complaints. Our schools are charged each day with educating
millions of children. Of those millions of students, a large
percentage will, at some point during their school careers,
experience something they consider sexual harassment. A 1993 study
by the American Association of University Women Educational
Foundation, for instance, found that "fully 4 out of 5 students
(81%) report that they have been the target of some form of sexual
harassment during their school lives." Hostile Hallways: The AAUW
Survey on Sexual Harassment in America's Schools 7 (1993). The
number of potential lawsuits against our schools is staggering.
The cost of defending against peer sexual harassment suits alone
could overwhelm many school districts, particularly since the
majority's liability standards will allow almost any plaintiff to
get to summary judgment, if not to a jury. In addition, there are
no damages caps on the judicially implied private cause of action
under Title IX. As a result, school liability in one peer sexual
harassment suit could approach, or even exceed, the total federal
funding of many school dis-
681
tricts. Petitioner, for example, seeks damages of $500,000 in
this case. App. to Pet. for Cert. 101a. Respondent school district
received approximately $679,000 in federal aid in 1992-1993. Brief
for School
Amici 25, n. 20. The school district sued in
Gebser received only $120,000 in federal funds a year. 524
U. S., 289-290. Indeed, the entire 19921993 budget of that district
was only $1.6 million. See Tr. of Oral Arg. in No. 96-1866, p.
34.
The limitless liability confronting our schools under the
implied Title IX cause of action puts schools in a far worse
position than businesses; when Congress established the express
cause of action for money damages under Title VII, it prescribed
damages caps. See
Gebser, supra, at 286 ("It was not until
1991 that Congress made damages available under Title VII, and even
then, Congress carefully limited the amount recoverable in any
individual case, calibrating the maximum recovery to the size of
the employer. See 42 U. S. C. § 1981a(b)(3). Adopting petitioner's
position would amount, then, to allowing unlimited recovery of
damages under Title IX where Congress has not spoken on the subject
of either the right or the remedy, and in the face of evidence that
when Congress expressly considered both in Title VII it restricted
the amount of damages available"). In addition, in contrast to
Title VII, Title IX makes no provision for agency investigation and
conciliation of complaints (prior to the filing of a case in
federal court) that could weed out frivolous suits or settle
meritorious ones at minimal cost.
The prospect of unlimited Title IX liability will, in all
likelihood, breed a climate of fear that encourages school
administrators to label even the most innocuous of childish conduct
sexual harassment. It would appear to be no coincidence that, not
long after the DOE issued its proposed policy guidance warning that
schools could be liable for peer sexual harassment in the fall of
1996, see 61 Fed. Reg. 42728, a North Carolina school suspended a
6-year-old boy who kissed a female classmate on the cheek for
sexual harassment, on the
682
theory that "[u]nwelcome is unwelcome at any age." Los Angeles
Times, Sept. 25,1996, p. All. A week later, a New York school
suspended a second grader who kissed a classmate and ripped a
button off her skirt. Buffalo News, Oct. 2, 1996, p. A16. The
second grader said that he got the idea from his favorite book
"Corduroy," about a bear with a missing button.
Ibid. School
administrators said only, "We were given guidelines as to why we
suspend children. We follow the guidelines."
Ibid.
At the college level, the majority's holding is sure to add fuel
to the debate over campus speech codes that, in the name of
preventing a hostile educational environment, may infringe
students' First Amendment rights. See
supra, at 667. Indeed,
under the majority's control principle, schools presumably will be
responsible for remedying conduct that occurs even in student
dormitory rooms. As a result, schools may well be forced to apply
workplace norms in the most private of domains.
Even schools that resist overzealous enforcement may find that
the most careful and reasoned response to a sexual harassment
complaint nonetheless provokes litigation. Speaking with the voice
of experience, the school
amici remind us, "[h]istory shows
that, no matter what a school official chooses to do, someone will
be unhappy. Student offenders almost always view their punishment
as too strict, and student complainants almost always view an
offender's punishment as too lax." Brief for School
Amici 12
(footnotes omitted).
A school faced with a peer sexual harassment complaint in the
wake of the majority's decision may well be beset with litigation
from every side. One student's demand for a quick response to her
harassment complaint will conflict with the alleged harasser's
demand for due process. Another student's demand for a
harassment-free classroom will conflict with the alleged harasser's
claim to a mainstream placement under the IDEA or with his state
constitutional right to a continuing, free public education. On
college campuses, and
683
even in secondary schools, a student's claim that the school
should remedy a sexually hostile environment will conflict with the
alleged harasser's claim that his speech, even if offensive, is
protected by the First Amendment. In each of these situations, the
school faces the risk of suit, and maybe even multiple suits,
regardless of its response. See
Doe v.
University of
Illinois, 138 F. 3d, at 679 (Posner, C. J., dissenting from
denial of rehearing en banc) ("Liability for failing to prevent or
rectify sexual harassment of one student by another places a school
on a razor's edge, since the remedial measures that it takes
against the alleged harasser are as likely to expose the school to
a suit by him as a failure to take those measure[s] would be to
expose the school to a suit by the victim of the alleged
harassment").
The majority's holding in this case appears to be driven by the
image of the school administration sitting idle every day while
male students commandeer a school's athletic field or computer lab
and prevent female students from using it through physical threats.
See
ante, at 650-651. Title IX might provide a remedy in
such a situation, however, without resort to the majority's
unprecedented theory of schoolliability for student harassment. If
the school usually disciplines students for threatening each other
and prevents them from blocking others' access to school
facilities, then the school's failure to enforce its rules when the
boys target the girls on a widespread level, day after day, may
support an inference that the school's decision not to respond is
itself based on gender. That pattern of discriminatory response
could form the basis of a Title IX action.
(Contrary to the majority's assertion, see
ante, at 653,
I do not suggest that mere indifference to gender-based
mistreatment-even if widespread-is enough to trigger Title IX
liability. I suggest only that a clear pattern of discriminatory
enforcement of school rules could raise an inference that the
school itself is discriminating. Recognizing that the school itself
might discriminate based on gender in the en-
684
forcement of its rules is a far cry from recognizing Title IX
liability based on the majority's expansive theory that a school
"subjects" its students to third-party discrimination when it has
some control over the harasser and fails to take corrective
action.)
Even more important, in most egregious cases the student will
have state-law remedies available to her. The student will often
have recourse against the offending student (or his parents) under
state tort law. In some cases, like this one, the perpetrator may
also be subject to criminal sanctions. And, as the majority notes,
the student may, in some circumstances, have recourse against the
school under state law.
Ante, at 644.
Disregarding these state-law remedies for student misbehavior
and the incentives that our schools already have to provide the
best possible education to all of their students, the majority
seeks, in effect, to put an end to student misbehavior by
transforming Title IX into a Federal Student Civility Code. See
Brief for Independent Women's Forum as
Amicus Curiae 2
(urging the Court to avoid that result). I fail to see how federal
courts will administer school discipline better than the principals
and teachers to whom the public has entrusted that task or how the
majority's holding will help the vast majority of students, whose
educational opportunities will be diminished by the diversion of
school funds to litigation. The private cause of action the Court
creates will justify a corps of federal administrators in writing
regulations on student harassment. It will also embroil schools and
courts in endless litigation over what qualifies as peer sexual
harassment and what constitutes a reasonable response.
In the final analysis, this case is about federalism. Yet the
majority's decision today says not one word about the federal
balance. Preserving our federal system is a legitimate end in
itself. It is, too, the means to other ends. It ensures that
essential choices can be made by a government
685
more proximate to the people than the vast apparatus of federal
power. Defining the appropriate role of schools in teaching and
supervising children who are beginning to explore their own
sexuality and learning how to express it to others is one of the
most complex and sensitive issues our schools face. Such decisions
are best made by parents and by the teachers and school
administrators who can counsel with them. The delicacy and immense
significance of teaching children about sexuality should cause the
Court to act with great restraint before it displaces state and
local governments.
Heedless of these considerations, the Court rushes onward,
finding that the cause of action it creates is necessary to effect
the congressional design. It is not. Nothing in Title IX suggests
that Congress intended or contemplated the result the Court reaches
today, much less dictated it in unambiguous terms. Today's decision
cannot be laid at the feet of Congress; it is the responsibility of
the Court.
The Court must always use great care when it shapes private
causes of action without clear guidance from Congress, but never
more so than when the federal balance is at stake. As we recognized
in
Gebser, the definition of an implied cause of action
inevitably implicates some measure of discretion in the Court to
shape a sensible remedial scheme. 524 U. S., at 284. Whether the
Court ever should have embarked on this endeavor under a Spending
Clause statute is open to question. What should be clear beyond any
doubt, however, is that the Court is duty bound to exercise that
discretion with due regard for federalism and the unique role of
the States in our system. The Court today disregards that
obligation. I can conceive of few interventions more intrusive upon
the delicate and vital relations between teacher and student,
between student and student, and between the State and its citizens
than the one the Court creates today by its own hand. Trusted
principles of federalism are superseded by a more contemporary
imperative.
686
Perhaps the most grave, and surely the most lasting, disservice
of to day's decision is that it ensures the Court's own disregard
for the federal balance soon will be imparted to our youngest
citizens. The Court clears the way for the Federal Government to
claim center stage in America's classrooms. Today's decision
mandates to teachers instructing and supervising their students the
dubious assistance of federal court plaintiffs and their lawyers
and makes the federal courts the final arbiters of school policy
and of almost every disagreement between students. Enforcement of
the federal right recognized by the majority means that federal
influence will permeate everything from curriculum decisions to
dayto-day classroom logistics and interactions. After today, Johnny
will find that the routine problems of adolescence are to be
resolved by invoking a federal right to demand assignment to a desk
two rows away.
As its holding makes painfully clear, the majority's
watered-down version of the Spending Clause clearstatement rule is
no substitute for the real protections of state and local autonomy
that our constitutional system requires. If there be any doubt of
the futility of the Court's attempt to hedge its holding about with
words of limitation for future cases, the result in this case
provides the answer. The complaint of this fifth grader survives
and the school will be compelled to answer in federal court. We can
be assured that like suits will follow-suits, which in cost and
number, will impose serious financial burdens on local school
districts, the taxpayers who support them, and the children they
serve. Federalism and our struggling school systems deserve better
from this Court. I dissent.
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