OCTOBER TERM, 1997
Syllabus
GEBSER ET AL. V. LAGO VISTA INDEPENDENT SCHOOL DISTRICT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 96-1866. Argued March 25, 1998-Decided June 22,1998
Petitioner Gebser, a high school student in respondent Lago
Vista Independent School District, had a sexual relationship with
one of her teachers. She did not report the relationship to school
officials. After the couple was discovered having sex and the
teacher was arrested, Lago Vista terminated his employment. During
this time, the district had not distributed an official grievance
procedure for lodging sexual harassment complaints or a formal
antiharassment policy, as required by federal regulations. Gebser
and her mother, also a petitioner here, filed suit raising, among
other things, a claim for damages against Lago Vista under Title IX
of the Education Amendments of 1972, which provides in pertinent
part that a person cannot "be subjected to discrimination under any
education program or activity receiving Federal financial
assistance," 20 U. S. C. § 1681(a). The Federal District Court
granted Lago Vista summary judgment. In affirming, the Fifth
Circuit held that school districts are not liable under Title IX
for teacher-student sexual harassment unless an employee with
supervisory power over the offending employee actually knew of the
abuse, had the power to end it, and failed to do so, and ruled that
petitioners could not satisfy that standard.
Held: Damages may not be recovered for teacher-student
sexual harassment in an implied private action under Title IX
unless a school district official who at a minimum has authority to
institute corrective measures on the district's behalf has actual
notice of, and is deliberately indifferent to, the teacher's
misconduct. Pp. 280-293.
(a) The express statutory means of enforcing Title IX is
administrative, as the statute directs federal agencies who
distribute education funding to establish requirements in
furtherance of the nondiscrimination mandate and allows agencies to
enforce those requirements, including ultimately by suspending or
terminating federal funding. The Court held in
Cannon v.
University of Chicago, 441 U. S. 677, that Title
IX is also enforceable through an implied private right of action.
In
Franklin v.
Gwinnett County Public Schools,
503 U. S. 60, the
Court established that monetary damages are available in such an
action, but made no effort to delimit the circumstances in which
that remedy
275
should lie. Petitioners, relying on standards developed in the
context of Title VII, contend that damages are available in an
implied action under Title IX based on principles of
respondeat
superior and constructive notice, i.
e., without actual
notice to officials of discrimination in school programs. Whether
an educational institution can be said to violate Title IX based on
principles of
respondeat superior and constructive notice
has not been resolved by the Court's decisions. In this case,
moreover, petitioners seek
damages based on theories of
respondeat superior and constructive notice. Unlike Title
IX, Title VII contains an express cause of action for a damages
remedy. Title IX's private action is judicially implied, however,
and so contains no legislative expression of the scope of available
remedies. Pp. 280-284.
(b) Because the private right of action is judicially implied,
this Court must infer how Congress would have addressed the issue
of monetary damages had the action been expressly included in Title
IX. It does not appear that Congress contemplated unlimited damages
against a funding recipient that is unaware of discrimination in
its programs. When Title IX was enacted, the principal civil rights
statutes containing an express right of action did not allow
monetary damages, and when Title VII was amended to allow such
damages, Congress limited the amount recoverable in any individual
case. Title IX was modeled after Title VI of the Civil Rights Act
of 1964, which prohibits race discrimination in programs receiving
federal funds. Both statutes condition federal funding on a
recipient's promise not to discriminate, in what amounts
essentially to a contract between the Government and the recipient.
In contrast, Title VII is framed as an outright prohibition. Title
IX's contractual nature has implications for the construction of
the scope of available remedies. When Congress conditions the award
of federal funds under its spending power, the Court closely
examines the propriety of private actions holding recipients liable
in damages for violating the condition. It is sensible to assume
that Congress did not envision a recipient's liability in damages
where the recipient was unaware of the discrimination.
Title IX contains important clues that this was Congress'
intent.
Title IX's express means of enforcement requires actual notice
to officials of the funding recipient and an opportunity for
voluntary compliance before administrative enforcement proceedings
can commence. The presumable purpose is to avoid diverting
education funding from beneficial uses where a recipient who is
unaware of discrimination in its programs is willing to institute
prompt corrective measures. Allowing recovery of damages based on
principles of
respondeat superior or constructive notice in
cases of teacher-student sexual harassment would be at odds with
that basic objective, as liability would attach
276
276 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
Syllabus
even though the district had no actual knowledge of the
teacher's conduct and no opportunity to take action to end the
harassment. It would be unsound for a statute's
express
enforcement system to require notice and an opportunity to comply
while a judicially implied system permits substantial
liability-including potentially an award exceeding a recipient's
federal funding level-without regard to either requirement. Pp.
284-290.
(c) Absent further direction from Congress, the implied damages
remedy should be fashioned along the same lines as the express
remedial scheme. Thus, a damages remedy will not lie unless an
official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the
recipient's behalf has actual knowledge of discrimination and fails
adequately to respond. Moreover, the response must amount to
deliberate indifference to discrimination, in line with the premise
of the statute's administrative enforcement scheme of an official
decision by the recipient not to remedy the violation. Applying the
framework to this case is fairly straightforward, as petitioners do
not contend they can prevail under an actual notice standard. Lago
Vista's alleged failure to comply with federal regulations
requiring it to promulgate and publicize an effective policy and
grievance procedure for sexual harassment claims does not establish
the requisite actual notice and deliberate indifference, and the
failure to promulgate a grievance procedure does not itself
constitute discrimination in violation of Title IX. pp.
290-292.
106 F.3d
1223, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG,
and BREYER, JJ., joined,
post, p. 293. GINSBURG, J., filed a
dissenting opinion, in which SOUTER and BREYER, JJ., joined,
post, p. 306.
Terry L. Weldon argued the cause for petitioners. With
him on the briefs were
Cynthia L. Estlund and
Samuel
Issacharoff
Beth S. Brinkmann 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, Deputy
Solicitor General Wallace, Deputy Assistant Attorney General
Pinzler, Dennis J. Dimsey, and Rebecca K. Troth.
277
Wallace B. Jefferson argued the cause for respondent.
With him on the brief were Ellen B. Mitchell and N. Mark
Ralls.*
JUSTICE O'CONNOR delivered the opinion of the Court. The
question in this case is when a school district may be held liable
in damages in an implied right of action under Title IX of the
Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C.
§ 1681
et seq. (Title IX), for the sexual harassment of a
student by one of the district's teachers. We conclude that damages
may not be recovered in those circumstances unless an official of
the school district who at a minimum has authority to institute
corrective measures on the district's behalf has actual notice of,
and is deliberately indifferent to, the teacher's misconduct.
I
In the spring of 1991, when petitioner Alida Star Gebser was an
eighth-grade student at a middle school in respondent Lago Vista
Independent School District (Lago Vista), she joined a high school
book discussion group led by Frank Waldrop, a teacher at Lago
Vista's high school. Lago Vista received federal funds at all
pertinent times. During the book discussion sessions, Waldrop often
made sexually suggestive comments to the students. Gebser entered
high school in the fall and was assigned to classes taught by
Waldrop in both semesters. Waldrop continued to make
inappropriate
*Briefs of
amici curiae urging reversal were filed for
the National Education Association by
Michael D. Simpson and
Laurence Gold; and for the National Women's Law Center et
al. by
Jacqueline R. Denning, Nancy L. Perkins, and
Marcia D. Greenberger.
Briefs of
amici curiae urging affirmance were filed for
the American Insurance Association by
William J.
Kilberg,
Craig A. Berrington, and
Phillip L. Schwartz; for the
Kentucky School Boards Association by
Michael A. Owsley and
Regina Abrams; for the National School Boards Association et
al. by
Lisa A. Brown, Gwendolyn H. Gregory, and
Cynthia
Jahn; and for the TASB Legal Assistance Fund by
Carolyn M.
Hanahan.
278
278 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
remarks to the students, and he began to direct more of his
suggestive comments toward Gebser, including during the substantial
amount of time that the two were alone in his classroom. He
initiated sexual contact with Gebser in the spring, when, while
visiting her home ostensibly to give her a book, he kissed and
fondled her. The two had sexual intercourse on a number of
occasions during the remainder of the school year. Their
relationship continued through the summer and into the following
school year, and they often had intercourse during class time,
although never on school property.
Gebser did not report the relationship to school officials,
testifying that while she realized Waldrop's conduct was improper,
she was uncertain how to react and she wanted to continue having
him as a teacher. In October 1992, the parents of two other
students complained to the high school principal about Waldrop's
comments in class. The principal arranged a meeting, at which,
according to the principal, Waldrop indicated that he did not
believe he had made offensive remarks but apologized to the parents
and said it would not happen again. The principal also advised
Waldrop to be careful about his classroom comments and told the
school guidance counselor about the meeting, but he did not report
the parents' complaint to Lago Vista's superintendent, who was the
district's Title IX coordinator. A couple of months later, in
January 1993, a police officer discovered Waldrop and Gebser
engaging in sexual intercourse and arrested Waldrop. Lago Vista
terminated his employment, and subsequently, the Texas Education
Agency revoked his teaching license. During this time, the district
had not promulgated or distributed an official grievance procedure
for lodging sexual harassment complaints; nor had it issued a
formal antiharassment policy.
Gebser and her mother filed suit against Lago Vista and Waldrop
in state court in November 1993, raising claims against the school
district under Title IX, Rev. Stat. § 1979,
279
42 U. S. C. § 1983, and state negligence law, and claims against
Waldrop primarily under state law. They sought compensatory and
punitive damages from both defendants. After the case was removed,
the United States District Court for the Western District of Texas
granted summary judgment in favor of Lago Vista on all claims, and
remanded the allegations against Waldrop to state court. In
rejecting the Title IX claim against the school district, the court
reasoned that the statute "was enacted to counter
policies
of discrimination ... in federally funded education programs," and
that "[o]nly if school administrators have some type of notice of
the gender discrimination and fail to respond in good faith can the
discrimination be interpreted as a
policy of the school
district." App. to Pet. for Cert. 6a-7a. Here, the court
determined, the parents' complaint to the principal concerning
Waldrop's comments in class was the only one Lago Vista had
received about Waldrop, and that evidence was inadequate to raise a
genuine issue on whether the school district had actual or
constructive notice that Waldrop was involved in a sexual
relationship with a student.
Petitioners appealed only on the Title IX claim. The Court of
Appeals for the Fifth Circuit affirmed,
Doe v.
Lago Vista
Independent School Dist., 106 F.3d
1223 (1997), relying in large part on two of its recent
decisions,
Rosa H. v.
San Elizario Independent School
Dist., 106 F.3d
648 (1997), and
Canutillo Independent School Dist. v.
Leija, 101 F.3d
393 (1996), cert. denied, 520 U. S. 1265 (1997). The court
first declined to impose strict liability on school districts for a
teacher's sexual harassment of a student, reiterating its
conclusion in
Leija that strict liability is inconsistent
with "the Title IX contract." 106 F. 3d, at 1225 (internal
quotation marks omitted). The court then determined that Lago Vista
could not be liable on the basis of constructive notice, finding
that there was insufficient evidence to suggest that a school
official should have known about Waldrop's relationship with
Gebser.
Ibid. Finally, the court refused to in-
280
280 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
voke the common law principle that holds an employer vicariously
liable when an employee is "aided in accomplishing [a] tort by the
existence of the agency relation," Restatement (Second) of Agency §
219(2)(d) (1957) (hereinafter Restatement), explaining that
application of that principle would result in school district
liability in essentially every case of teacher-student harassment.
106 F. 3d, at 1225-1226.
The court concluded its analysis by reaffirming its holding in
Rosa H. that "school districts are not liable in tort for
teacher-student [sexual] harassment under Title IX unless an
employee who has been invested by the school board with supervisory
power over the offending employee actually knew of the abuse, had
the power to end the abuse, and failed to do so," 106 F. 3d, at
1226, and ruling that petitioners could not satisfy that standard.
The Fifth Circuit's analysis represents one of the varying
approaches adopted by the Courts of Appeals in assessing a school
district's liability under Title IX for a teacher's sexual
harassment of a student. See
Smith v.
Metropolitan School
Dist. Perry Twp., 128 F.3d
1014 (CA7 1997);
Kracunas v.
Iona College,
119 F. 3d 80
(CA2 1997);
Doe v.
Claiborne
County, 103 F.3d
495,
513-515 (CA6 1996);
Kinman v.
Omaha
Public School Dist., 94 F.3d
463, 469 (CA8 1996). We granted certiorari to address the
issue, 522 U. S. 1011 (1997), and we now affirm.
II
Title IX provides in pertinent part: "No person ... shall, on
the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance." 20 U.
S. C. § 1681(a). The express statutory means of enforcement is
administrative: The statute directs federal agencies that
distribute education funding to establish requirements to
effectuate the nondiscrimination mandate, and permits the agencies
to enforce those requirements through "any ... means authorized by
law," including
281
ultimately the termination of federal funding. § 1682. The Court
held in
Cannon v.
University of Chicago, 441 U. S. 677 (1979),
that Title IX is also enforceable through an implied private right
of action, a conclusion we do not revisit here. We subsequently
established in
Franklin v.
Gwinnett County Public
Schools, 503 U. S.
60 (1992), that monetary damages are available in the implied
private action.
In
Franklin, a high school student alleged that a teacher
had sexually abused her on repeated occasions and that teachers and
school administrators knew about the harassment but took no action,
even to the point of dissuading her from initiating charges. See
id., at 63-64. The lower courts dismissed Franklin's complaint
against the school district on the ground that the implied right of
action under Title IX, as a categorical matter, does not encompass
recovery in damages. We reversed the lower courts' blanket rule,
concluding that Title IX supports a private action for damages, at
least "in a case such as this, in which intentional discrimination
is alleged." See
id., at 74-75.
Franklin thereby
establishes that a school district can be held liable in damages in
cases involving a teacher's sexual harassment of a student; the
decision, however, does not purport to define the contours of that
liability.
We face that issue squarely in this case. Petitioners, joined by
the United States as
amicus curiae, would invoke standards
used by the Courts of Appeals in Title VII cases involving a
supervisor's sexual harassment of an employee in the workplace. In
support of that approach, they point to a passage in
Franklin in which we stated: "Unquestionably, Title IX
placed on the Gwinnett County Public Schools the duty not to
discriminate on the basis of sex, and 'when a supervisor sexually
harasses a subordinate because of the subordinate's sex, that
supervisor "discriminate[sJ" on the basis of sex.'
Meritor Sav.
Bank, FSB v.
Vinson, 477 U. S. 57, 64 (1986).
We believe the same rule should apply when a teacher sexually
harasses and abuses a student."
Id., at 75.
282
282 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
Meritor Savings Bank, FSB v.
Vinson, 477 U. S. 57 (1986),
directs courts to look to common law agency principles when
assessing an employer's liability under Title VII for sexual
harassment of an employee by a supervisor. See id., at 72.
Petitioners and the United States submit that, in light of
Franklin's comparison of teacher-student harassment with
supervisor-employee harassment, agency principles should likewise
apply in Title IX actions.
Specifically, they advance two possible standards under which
Lago Vista would be liable for Waldrop's conduct. First, relying on
a 1997 "Policy Guidance" issued by the Department of Education,
they would hold a school district liable in damages under Title IX
where a teacher is "'aided in carrying out the sexual harassment of
students by his or her position of authority with the
institution,'" irrespective of whether school district officials
had any knowledge of the harassment and irrespective of their
response upon becoming aware. Brief for Petitioners 36 (quoting
Dept. of Education, Office for Civil Rights, Sexual Harassment
Policy Guidance:
Harrassment of Students by School Employees, Other Students, or
Third Parties, 62 Fed. Reg. 12034, 12039 (1997) (1997 Policy
Guidance)); Brief for United States as
Amicus Curiae 14.
That rule is an expression of
respondeat superior liability,
i.
e., vicarious or imputed liability, see Restatement §
219(2)(d), under which recovery in damages against a school
district would generally follow whenever a teacher's authority over
a student facilitates the harassment. Second, petitioners and the
United States submit that a school district should at a minimum be
liable for damages based on a theory of constructive notice, i.
e., where the district knew or "should have known" about
harassment but failed to uncover and eliminate it. Brief for
Petitioners 28; Brief for United States as
Amicus Curiae
15-16; see Restatement § 219(2)(b). Both standards would allow a
damages recovery in a broader range of situations than the rule
adopted by the
283
Court of Appeals, which hinges on actual knowledge by a school
official with authority to end the harassment.
Whether educational institutions can be said to violate Title IX
based solely on principles of
respondeat superior or
constructive notice was not resolved by
Franklin's citation
of
Meritor. That reference to
Meritor was made with
regard to the general proposition that sexual harassment can
constitute discrimination on the basis of sex under Title IX, see
Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75, 80-81
(1998), an issue not in dispute here. In fact, the school
district's liability in
Franklin did not necessarily turn on
principles of imputed liability or constructive notice, as there
was evidence that school officials knew about the harassment but
took no action to stop it. See 503 U. S., at 63-64. Moreover,
Meritor's rationale for concluding that agency principles
guide the liability inquiry under Title VII rests on an aspect of
that statute not found in Title IX:
Title VII, in which the prohibition against employment
discrimination runs against "an employer," 42 U. S. C. § 2000e2(a),
explicitly defines "employer" to include "any agent," § 2000e(b).
See
Meritor, supra, at 72. Title IX contains no comparable
reference to an educational institution's "agents," and so does not
expressly call for application of agency principles.
In this case, moreover, petitioners seek not just to establish a
Title IX violation but to recover
damages based on theories
of
respondeat superior and constructive notice. It is that
aspect of their action, in our view, that is most critical to
resolving the case. Unlike Title IX, Title VII contains an express
cause of action, § 2000e-5(f), and specifically provides for relief
in the form of monetary damages, § 1981a. Congress therefore has
directly addressed the subject of damages relief under Title VII
and has set out the particular situations in which damages are
available as well as the maximum amounts recoverable. § 1981a(b).
With respect to Title IX, however, the private right of action is
judicially
284
284 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
implied, see
Cannon, 441 U. S., at 717, and there is thus
no legislative expression of the scope of available remedies,
including when it is appropriate to award monetary damages. In
addition, although the general presumption that courts can award
any appropriate relief in an established cause of action,
e. g.,
Bell v.
Hood, 327 U. S. 678, 684
(1946), coupled with Congress' abrogation of the States' Eleventh
Amendment immunity under Title IX, see 42 U. S. C. § 2000d-7, led
us to conclude in
Franklin that Title IX recognizes a
damages remedy, 503 U. S., at 68-73; see id., at 78 (SCALIA, J.,
concurring in judgment), we did so in response to lower court
decisions holding that Title IX does not support damages relief at
all. We made no effort in
Franklin to delimit the
circumstances in which a damages remedy should lie.
III
Because the private right of action under Title IX is judicially
implied, we have a measure of latitude to shape a sensible remedial
scheme that best comports with the statute. See,
e. g., Musick,
Peeler &
Garrett v.
Employers Ins. of Wausau,
508 U. S. 286,
292-293 (1993);
Virginia Bankshares, Inc. v.
Sandberg, 501
U. S. 1083, 1104 (1991). That endeavor inherently entails a
degree of speculation, since it addresses an issue on which
Congress has not specifically spoken. See,
e. g., Lampf, Pleva,
Lipkind, Prupis &
Petigrow v.
Gilbertson,
501 U. S. 350,
359 (1991). To guide the analysis, we generally examine the
relevant statute to ensure that we do not fashion the scope of an
implied right in a manner at odds with the statutory structure and
purpose. See
Musick, Peeler, 508 U. S., at 294-297;
id., at 300 (THOMAS, J., dissenting);
Virginia
Bankshares, supra, at 1102.
Those considerations, we think, are pertinent not only to the
scope of the implied right, but also to the scope of the available
remedies. See
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.
S. 11 (1979); see also
Franklin, supra,
285
at 77-78 (SCALIA, J., concurring in judgment). We suggested as
much in
Franklin, where we recognized "the general rule that
all appropriate relief is available in an action brought to
vindicate a federal right," but indicated that the rule must be
reconciled with congressional purpose. 503 U. S., at 68. The
"general rule," that is, "yields where necessary to carry out the
intent of Congress or to avoid frustrating the purposes of the
statute involved."
Guardians Assn. v.
Civil Servo Comm'n
of New York City, 463 U. S. 582, 595 (1983)
(opinion of White, J.); cf.,
Cannon, 441 U. S, at 703 ("[A]
private remedy should not be implied if it would frustrate the
underlying purpose of the legislative scheme").
Applying those principles here, we conclude that it would
"frustrate the purposes" of Title IX to permit a damages recovery
against a school district for a teacher's sexual harassment of a
student based on principles of
respondeat superior or
constructive notice, i.
e., without actual notice to a
school district official. Because Congress did not expressly create
a private right of action under Title IX, the statutory text does
not shed light on Congress' intent with respect to the scope of
available remedies.
Franklin, 503 U. S., at 71; id., at 76
(SCALIA, J., concurring in judgment). Instead, "we attempt to infer
how the [1972] Congress would have addressed the issue had the ...
action been included as an express provision in the" statute.
Central Bank of Denver, N.
A. v.
First Interstate
Bank of Denver, N.
A., 511 U. S. 164, 178 (1994)
(internal quotation marks omitted); see
Musick, Peeler,
supra, at 294-295;
North Haven Bd. of Ed. v.
Bell, 456 U.
S. 512, 529 (1982).
As a general matter, it does not appear that Congress
contemplated unlimited recovery in damages against a funding
recipient where the recipient is unaware of discrimination in its
programs. When Title IX was enacted in 1972, the principal civil
rights statutes containing an express right of action did not
provide for recovery of monetary damages at all, instead allowing
only injunctive and equitable relief. See 42
286
286 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
u. S. C. § 2000a-3(a) (1970 ed.); §§ 2000e-5(e), (g) (1970 ed.,
Supp. II). 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 petitioners' 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.
Congress enacted Title IX in 1972 with two principal objectives
in mind: "[T]o avoid the use of federal resources to support
discriminatory practices" and "to provide individual citizens
effective protection against those practices."
Cannon,
supra, at 704. The statute was modeled after Title VI of the
Civil Rights Act of 1964, see 441 U. S., at 694-696;
Grove City
College v.
Bell, 465 U. S. 555, 566
(1984), which is parallel to Title IX except that it prohibits race
discrimination, not sex discrimination, and applies in all programs
receiving federal funds, not only in education programs. See 42 U.
S. C. § 2000d
et seq. The two statutes 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. See
Guardians, 463 U. S., at 599 (opinion of White, J.); id., at
609 (Powell, J., concurring in judgment); cf.
Pennhurst State
School and Hospital v.
Halderman, 451 U. S. 1, 17 (1981).
That contractual framework distinguishes Title IX from Title
VII, which is framed in terms not of a condition but of an outright
prohibition. Title VII applies to all employers without regard to
federal funding and aims broadly to "eradicat[e] discrimination
throughout the economy."
Landgraf v.
USI Film
Products, 511 U.
S. 244, 254 (1994) (internal quo-
287
tation marks omitted). Title VII, moreover, seeks to "make
persons whole for injuries suffered through past discrimination."
Ibid. (internal quotation marks omitted). Thus, whereas
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.
Cannon, supra, at 704. That might explain why, when
the Court first recognized the implied right under Title IX in
Cannon, the opinion referred to injunctive or equitable
relief in a private action, see 441 U. S., at 705, and n. 38, 710,
n. 44, 711, but not to a damages remedy.
Title IX's contractual nature has implications for our
construction of the scope of available remedies. When Congress
attaches conditions to the award of federal funds under its
spending power, U. S. Const., Art. I, § 8, cl. 1, as it has in
Title IX and Title VI, we examine closely the propriety of private
actions holding the recipient liable in monetary damages for
noncompliance with the condition. See
Franklin, supra, at
74-75;
Guardians, supra, at 596603 (White, J.); see
generally
Pennhurst, supra, at 28-29. Our central concern in
that regard is with ensuring that "the receiving entity of federal
funds [has] notice that it will be liable for a monetary award."
Franklin, supra, at 74. Justice White's opinion announcing
the Court's judgment in
Guardians Assn. v.
Civil Servo
Comm'n of New York City, for instance, concluded that the
relief in an action under Title VI alleging unintentional
discrimination should be prospective only, because where
discrimination is unintentional, "it is surely not obvious that the
grantee was aware that it was administering the program in
violation of the [condition]." 463 U. S., at 598. We confront
similar concerns here. If a school district's liability for a
teacher's sexual harassment rests on principles of constructive
notice or
respondeat superior, it will likewise be the case
that the recipient of funds was unaware of the discrimination. It
is sensible to as-
288
288 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
sume that Congress did not envision a recipient's liability in
damages in that situation. See
Rosa H., 106 F. 3d, at 654
("When the school board accepted federal funds, it agreed not to
discriminate on the basis of sex. We think it unlikely that it
further agreed to suffer liability whenever its employees
discriminate on the basis of sex").
Most significantly, 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. Title IX's express means of enforcement-by
administrative agencies-operates on an assumption of actual notice
to officials of the funding recipient. The statute entitles
agencies who disburse education funding to enforce their rules
implementing the nondiscrimination mandate through proceedings to
suspend or terminate funding or through "other means authorized by
law." 20 U. S. C. § 1682. Significantly, however, an agency may not
initiate enforcement proceedings until it "has advised the
appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured by
voluntary means."
Ibid. The administrative regulations
implement that obligation, requiring resolution of compliance
issues "by informal means whenever possible," 34 CFR § 100.7(d)
(1997), and prohibiting commencement of enforcement proceedings
until the agency has determined that voluntary compliance is
unobtainable and "the recipient ... has been notified of its
failure to comply and of the action to be taken to effect
compliance," § 100.8(d); see § 100.8(c).
In the event of a violation, a funding recipient may be required
to take "such remedial action as [is] deem[ed] necessary to
overcome the effects of [the] discrimination." § 106.3. While
agencies have conditioned continued funding on providing equitable
relief to the victim, see,
e. g.,
North Haven, 456 U.
S., at 518 (reinstatement of employee), the regulations do not
appear to contemplate a condition order-
289
ing payment of monetary damages, and there is no indication that
payment of damages has been demanded as a condition of finding a
recipient to be in compliance with the statute. See Brief for
United States as
Amicus Curiae in
Franklin v.
Gwinnett County School District, O. T. 1991, No. 90-918,
p.24. In
Franklin, for instance, the Department of Education
found a violation of Title IX but determined that the school
district came into compliance by virtue of the offending teacher's
resignation and the district's institution of a grievance procedure
for sexual harassment complaints. 503 U. S., at 64, n. 3.
Presumably, a central purpose of requiring notice of the
violation "to the appropriate person" and an opportunity for
voluntary compliance before administrative enforcement proceedings
can commence is to avoid diverting education funding from
beneficial uses where a recipient was unaware of discrimination in
its programs and is willing to institute prompt corrective
measures. The scope of private damages relief proposed by
petitioners is at odds with that basic objective. When a teacher's
sexual harassment is imputed to a school district or when a school
district is deemed to have "constructively" known of the teacher's
harassment, by assumption the district had no actual knowledge of
the teacher's conduct. Nor, of course, did the district have an
opportunity to take action to end the harassment or to limit
further harassment.
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. Cf.
Central Bank of Denver,
N.
A. v.
First Interstate Bank of Denver, N.
A., 511 U. S., at 180 ("[I]t would be 'anomalous to impute
to Congress an intention to expand the plaintiff class for a
judicially implied cause of action beyond the bounds it delineated
for
290
290 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
comparable express causes of action' "), quoting Blue Chip
Stamps v.
Manor Drug Stores, 421 U. S. 723, 736
(1975). Moreover, an award of damages in a particular case might
well exceed a recipient's level of federal funding. See Tr. of Oral
Arg. 35 (Lago Vista's federal funding for 1992-1993 was roughly
$120,000). Where a statute's express enforcement scheme hinges its
most severe sanction on notice and unsuccessful efforts to obtain
compliance, we cannot attribute to Congress the intention to have
implied an enforcement scheme that allows imposition of greater
liability without comparable conditions.
IV
Because the express remedial scheme under Title IX is predicated
upon notice to an "appropriate person" and an opportunity to
rectify any violation, 20 U. S. C. § 1682, we conclude, in the
absence of further direction from Congress, that the implied
damages remedy should be fashioned along the same lines. An
"appropriate person" under § 1682 is, at a minimum, an official of
the recipient entity with authority to take corrective action to
end the discrimination. Consequently, in cases like this one that
do not involve official policy of the recipient entity, we hold
that a damages remedy will not lie under Title IX unless an
official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the
recipient's behalf has actual knowledge of discrimination in the
recipient's programs and fails adequately to respond.
We think, moreover, that the response must amount to deliberate
indifference to discrimination. The administrative enforcement
scheme presupposes that an official who is advised of a Title IX
violation refuses to take action to bring the recipient into
compliance. The premise, in other words, is an official decision by
the recipient not to remedy the violation. That framework finds a
rough parallel in the standard of deliberate indifference. Under a
lower standard, there would be a risk that the recipient would be
liable in dam-
291
ages not for its own official decision but instead for its
employees' independent actions. Comparable considerations led to
our adoption of a deliberate indifference standard for claims under
§ 1983 alleging that a municipality's actions in failing to prevent
a deprivation of federal rights was the cause of the violation. See
Board of Comm'rs of Bryan Cty. v.
Brown, 520 U. S. 397 (1997);
Canton v.
Harris, 489 U. S. 378, 388-392
(1989); see also
Collins v.
Harker Heights, 503 U. S.
115, 123-124 (1992).
Applying the framework to this case is fairly straightforward,
as petitioners do not contend they can prevail under an actual
notice standard. The only official alleged to have had information
about Waldrop's misconduct is the high school principal. That
information, however, consisted of a complaint from parents of
other students charging only that Waldrop had made inappropriate
comments during class, which was plainly insufficient to alert the
principal to the possibility that Waldrop was involved in a sexual
relationship with a student. Lago Vista, moreover, terminated
Waldrop's employment upon learning of his relationship with Gebser.
JUSTICE STEVENS points out in his dissenting opinion that Waldrop
of course had knowledge of his own actions. See
post, at
299, n. 8. Where a school district's liability rests on actual
notice principles, however, the knowledge of the wrongdoer himself
is not pertinent to the analysis. See Restatement § 280.
Petitioners focus primarily on Lago Vista's asserted failure to
promulgate and publicize an effective policy and grievance
procedure for sexual harassment claims. They point to Department of
Education regulations requiring each funding recipient to "adopt
and publish grievance procedures providing for prompt and equitable
resolution" of discrimination complaints, 34 CFR § 106.8(b) (1997),
and to notify students and others that "it does not discriminate on
the basis of sex in the educational programs or activities which it
operates," § 106.9(a). Lago Vista's alleged failure to comply with
the
292
292 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
regulations, however, does not establish the requisite actual
notice and deliberate indifference. And in any event, the failure
to promulgate a grievance procedure does not itself constitute
"discrimination" under Title IX. Of course, the Department of
Education could enforce the requirement administratively: Agencies
generally have authority to promulgate and enforce requirements
that effectuate the statute's nondiscrimination mandate, 20 U. s.
C. § 1682, even if those requirements do not purport to represent a
definition of discrimination under the statute.
E. g.,
Grove City, 465 U. S., at 574-575 (permitting administrative
enforcement of regulation requiring college to execute an
"Assurance of Compliance" with Title IX). We have never held,
however, that the implied private right of action under Title IX
allows recovery in damages for violation of those sorts of
administrative requirements.
v
The number of reported cases involving sexual harassment of
students in schools confirms that harassment unfortunately is an
all too common aspect of the educational experience. No one
questions that a student suffers extraordinary harm when subjected
to sexual harassment and abuse by a teacher, and that the teacher's
conduct is reprehensible and undermines the basic purposes of the
educational system. The issue in this case, however, is whether the
independent misconduct of a teacher is attributable to the school
district that employs him under a specific federal statute designed
primarily to prevent recipients of federal financial assistance
from using the funds in a discriminatory manner. Our decision does
not affect any right of recovery that an individual may have
against a school district as a matter of state law or against the
teacher in his individual capacity under state law or under 42 U.
S. C. § 1983. Until Congress speaks directly on the subject,
however, we will not hold a school district liable in damages under
Title IX for a teacher's sexual harassment of a student absent
actual notice and de-
293
liberate indifference. We therefore affirm the judgment of the
Court of Appeals.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The question that the petition for certiorari asks us to address
is whether the Lago Vista Independent School District (respondent)
is liable in damages for a violation of Title IX of the Education
Amendments of 1972, 20 U. S. C. § 1681
et seq. (Title IX).
The Court provides us with a negative answer to that question
because respondent did not have actual notice of, and was not
deliberately indifferent to, the odious misconduct of one of its
teachers. As a basis for its decision, the majority relies heavily
on the notion that because the private cause of action under Title
IX is "judicially implied," the Court has "a measure of latitude"
to use its own judgment in shaping a remedial scheme. See
ante, at 284. This assertion of lawmaking authority is not
faithful either to our precedents or to our duty to interpret,
rather than to revise, congressional commands. Moreover, the
majority's policy judgment about the appropriate remedy in this
case thwarts the purposes of Title IX.
I
It is important to emphasize that in
Cannon v.
University of Chicago, 441 U. S. 677 (1979), the
Court confronted a question of statutory construction. The decision
represented our considered judgment about the intent of the
Congress that enacted Title IX in 1972. After noting that Title IX
had been patterned after Title VI of the Civil Rights Act of 1964,
which had been interpreted to include a private right of action, we
concluded that Congress intended to authorize the same private
enforcement of Title IX. 441 U. S., at 694698; see also id., at 703
("We have no doubt that Congress intended to create Title IX
remedies comparable to those available under Title VI and that it
understood Title VI as
294
294 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
authorizing an implied private cause of action for victims of
the prohibited discrimination").l As long as the intent of Congress
is clear, an implicit command has the same legal force as one that
is explicit. The fact that a statute does not authorize a
particular remedy "in so many words is no more significant than the
fact that it does not in terms authorize execution to issue on a
judgment recovered under [the statute]."
Deckert v.
Independence Shares Corp., 311 U. S. 282, 288
(1940).2
In
Franklin v.
Gwinnett County Public Schools,
503 U. S. 60
(1992), we unanimously concluded that Title IX authorized
1 We explained: "In 1972 when Title IX was enacted, the critical
language in Title VI had already been construed as creating a
private remedy .... It is always appropriate to assume that our
elected representatives, like other citizens, know the law; in this
case, because of their repeated references to Title VI and its
modes of enforcement, we are especially justified in presuming both
that those representatives were aware of the prior interpretation
of Title VI and that that interpretation reflects their intent with
respect to Title IX." 441 U. S., at 696-698. We also observed that
"during the period between the enactment of Title VI in 1964 and
the enactment of Title IX in 1972, this Court had consistently
found implied remedies-often in cases much less clear than this. It
was
after 1972 that this Court decided
Cort v.
Ash[, 422 U. S.
66 (1975),] and the other cases cited by the Court of Appeals
in support of its strict construction of the remedial aspect of the
statute. We, of course, adhere to the strict approach followed in
our recent cases, but our evaluation of congressional action in
1972 must take into account its contemporary legal contest. In sum,
it is not only appropriate but also realistic to presume that
Congress was thoroughly familiar with these unusually important
precedents from this and other federal courts and that it expected
its enactment to be interpreted in conformity with them."
Id., at 698-699 (footnotes omitted).
2 In
Consolidated Rail Corporation v.
Darrone,
465 U. S. 624
(1984), we unanimously concluded that comparable language in the
statute prohibiting discrimination against the handicapped by
federal grant recipients authorized a private right of action for
the recovery of backpay. That decision, like
Cannon, relied
on the fact that the comparable language in Title VI had authorized
a private remedy. See 465 U. S., at 626, 635.
295
a high school student who had been sexually harassed by a sports
coach/teacher to recover damages from the school district. That
conclusion was supported by two considerations. In his opinion for
the Court, Justice White first relied on the presumption that
Congress intends to authorize "all appropriate remedies" unless it
expressly indicates otherwise.
Id., at 66.3 He then noted
that two amendments 4 to Title IX enacted after the decision in
Cannon had validated
Cannon's holding and supported
the conclusion that "Congress did not intend to limit the remedies
available in a suit brought under Title IX." 503 U. S., at 72.
JUSTICE SCALIA, concurring in the judgment, agreed that Congress'
amendment of Title IX to eliminate the States' Eleventh Amendment
immunity, see 42 U. S. C. § 2000d-7(a)(1), must be read "not only
'as a validation of
Cannon's holding,'
ante, at 72,
but also as an implicit acknowledgment that damages are available."
503 U. S., at 78.
3"In
Marbury v.
Madison, 1 Cranch 137, 163 (1803),
for example, Chief Justice Marshall observed that our Government
'has been emphatically termed a government of laws, and not of men.
It will certainly cease to deserve this high appellation, if the
laws furnish no remedy for the violation of a vested legal right.'
This principle originated in the English common law, and Blackstone
described it as 'a general and indisputable rule, that where there
is a legal right, there is also a legal remedy, by suit or action
at law, whenever that right is invaded.' 3 W. Blackstone,
Commentaries 23 (1783). See also
Ashby v.
White, 1
Salk. 19, 21, 87 Eng. Rep. 808,816 (Q. B. 1702) ('If a statute
gives a right, the common law will give a remedy to maintain that
right .. .')."
Franklin v.
Gwinnett County Public
Schools, 503 U. S., at 66-67; see also
id., at 67 (" 'A
disregard of the command of the statute is a wrongful act, and
where it results in damage to one of the class for whose especial
benefit the statute was enacted, the right to recover the damages
from the party in default is implied, according to a doctrine of
the common law''') (quoting
Texas &
Pacific R.
Co. v.
Rigsby, 241 U. S. 33, 39
(1916)).
4 See Rehabilitation Act Amendments of 1986, 42 U. S. C. §
2000d-7 (abrogating the States' Eleventh Amendment immunity); Civil
Rights Restoration Act of 1987, 20 U. S. C. § 1687 (defining
"program or activity" broadly).
296
296 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
Because these constructions of the statute have been accepted by
Congress and are unchallenged here, they have the same legal effect
as if the private cause of action seeking damages had been
explicitly, rather than implicitly, authorized by Congress. We
should therefore seek guidance from the text of the statute and
settled legal principles rather than from our views about sound
policy.
II
We have already noted that the text of Title IX should be
accorded" 'a sweep as broad as its language.'"
North Haven Bd.
of Ed. v.
Bell, 456 U. S. 512, 521 (1982)
(quoting
United States v.
Price, 383 U. S. 787 (1966)).
That sweep is broad indeed. "No person ... shall, on the basis of
sex, ... be subjected to discrimination under any education program
or activity receiving Federal financial assistance .... " 20 U. S.
C. § 1681(a). As Judge Rovner has correctly observed, the use of
passive verbs in Title IX, focusing on the victim of the
discrimination rather than the particular wrongdoer, gives this
statute broader coverage than Title VII. See
Smith v.
Metropolitan School Dist. Perry Twp.,
128
F.3d 1014, 1047 (CA7 1997) (dissenting opinion).5
5 "Unlike Title VII ... , which focuses on the discriminator,
making it unlawful for an employer to engage in certain prohibited
practices
(see 42 U. S. C. §2000e-2(a)), Title IX is drafted
from the perspective of the person discriminated against. That
statute names no actor, but using passive verbs, focuses on the
setting in which the discrimination occurred. In effect, the
statute asks but a single question-whether an individual was
subjected to discrimination
under a covered program or
activity .... And because Title IX as drafted includes no actor at
all, it necessarily follows that the statute also would not
reference 'agents' of that non-existent actor."
Smith v.
Metropolitan School Dist. Perry Twp., 128 F. 3d, at 1047;
see also
Cannon v.
University of Chicago, 441 U. S. 677, 691-693
(1979) (recognizing that Congress drafted Title IX "with an
unmistakable focus on the benefited class," and did not "writ[e] it
simply as a ban on discriminatory conduct by recipients of federal
funds or as a prohibition
297
Moreover, because respondent assumed the statutory duty set out
in Title IX as part of its consideration for the receipt of federal
funds, that duty constitutes an affirmative undertaking that is
more significant than a mere promise to obey the law.
Both of these considerations are reflected in our decision in
Franklin. Explaining why Title IX is violated when a teacher
sexually abuses a student, we wrote:
"Unquestionably, Title IX placed on the Gwinnett County Public
Schools the duty not to discriminate on the basis of sex, and 'when
a supervisor sexually harasses a subordinate because of the
subordinate's sex, that supervisor "discriminate[sJ" on the basis
of sex.' Meritor Sav. Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986).
We believe the same rule should apply when a teacher sexually
harasses and abuses a student. Congress surely did not
intend for federal moneys to be expended to support the intentional
actions it sought by statute to proscribe." 503 U. S., at 75
(emphasis added).
Franklin therefore stands for the proposition that sexual
harassment of a student by a teacher violates the dutyassumed by
the school district in exchange for federal funds-not to
discriminate on the basis of sex, and that a student may recover
damages from a school district for such a violation.
Although the opinion the Court announces today is not entirely
clear, it does not purport to overrule
Franklin. See
ante, at 281
("Franklin thereby establishes that a
school district can be held liable in damages in cases involving a
teacher's sexual harassment of a student"). Moreover, I do not
understand the Court to question the conclusion that an intentional
violation of Title IX, of the type we recognized in
against the disbursement of public funds to educational
institutions engaged in discriminatory practices").
298
298 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
Franklin,6 has been alleged in this case.7 During her
freshman and sophomore years of high school, petitioner Alida Star
Gebser was repeatedly subjected to sexual abuse by her teacher,
Frank Waldrop, whom she had met in the eighth grade when she joined
his high school book discussion group. Waldrop's conduct was surely
intentional, and it occurred during, and as a part of, a curriculum
activity in which he wielded authority over Gebser that had been
delegated to him by respondent. Moreover, it is undisputed that the
activity was subsidized, in part, with federal moneys.
The Court nevertheless holds that the law does not provide a
damages remedy for the Title IX violation alleged in this case
because no official of the school district with "authority to
institute corrective measures on the district's behalf" had actual
notice of Waldrop's misconduct.
Ante, at 277. That holding
is at odds with settled principles of
6 As the Court notes, the student in
Franklin-unlike the
student in this case-alleged that school administrators knew about
the harassment but failed to act. See
ante, at 281;
Franklin v.
Gwinnett County Schools, 503 U. S., at
64. The
Franklin opinion does not suggest, however, that
that allegation was relevant to its holding that the school
district could be liable in damages for an intentional violation of
Title IX as a result of teacher-student harassment.
7 Cf. Brief for Respondent 9 ("It is important to bear in mind
that the question in this case is not whether school districts are
somehow 'responsible' for violations of Title IX and for failure to
comply with administrative procedures. The issue is in what
circumstances a school district may be compelled to answer
in
damages for a violation of Title IX or its implementing
regulations"); id., at 13 ("In sum, the manner in which Title IX is
phrased simply determines that a violation of the statute may occur
whenever a person is discriminated against on the basis of sex,
regardless of the school district's knowledge of the
discrimination. But nothing in the language of the statute
indicates that a school district must respond in damages for every
such violation, regardless of its own knowledge or culpability").
But see id., at 19 ("[T]here is no evidence that Lago Vista
committed an intentional violation of Title IX").
299
agency law,s under which the district is responsible for
Waldrop's misconduct because "he was aided in accomplishing the
tort by the existence of the agency relation." Restatement (Second)
of Agency § 219(2)(d) (1957).9 This case presents a paradigmatic
example of a tort that was made possible, that was effected, and
that was repeated over a prolonged period because of the powerful
influence that Waldrop had over Gebser by reason of the authority
that his employer, the school district, had delegated to him. As a
secondary school teacher, Waldrop exercised even greater authority
and control over his students than employers and supervisors
exercise over their employees. His gross misuse of that authority
allowed him to abuse his young student's trust.10
8 The Court's holding is also questionable as a factual matter.
Waldrop himself surely had ample authority to maintain order in the
classes that he conducted. Indeed, that is a routine part of every
teacher's responsibilities. If Gebser had been the victim of
sexually harassing conduct by other students during those classes,
surely the teacher would have had ample authority to take
corrective measures. The fact that he did not prevent his own
harassment of Gebser is the consequence of his lack of will, not
his lack of authority.
9 The Court suggests that agency principles are inapplicable to
this case because Title IX does not expressly refer to an "agent,"
as Title VII does. See
ante, at 283 (citing 42 U. S. C. §
2000e(b)). Title IX's focus on the protected class rather than the
fund recipient fully explains the statute's failure to mention
"agents" of the recipient, however. See n. 5,
supra.
Moreover, in
Meritor Savings Bank, FSB v.
Vinson,
477 U. S. 57
(1986), we viewed Title VII's reference to an "agent" as a
limitation on the liability of the employer: "Congress'
decision to define 'employer' to include any 'agent' of an
employer, 42 U. S. C. § 2000e(b), surely evinces an intent to place
some limits on the acts of employees for which employers under
Title VII are to be held responsible."
Id., at 72.
10 For example, Waldrop first sexually abused Gebser when he
visited her house on the pretense of giving her a book that she
needed for a school project. See App. 54a (deposition of Alida Star
Gebser). Gebser, then a high school freshman, stated that she "was
terrified": "He was the main teacher at the school with whom I had
discussions, and I didn't know what
300
300 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
Reliance on the principle set out in § 219(2)(b) of the
Restatement comports with the relevant agency's interpretation of
Title IX. The United States Department of Education, through its
Office for Civil Rights, recently issued a policy "Guidance"
stating that a school district is liable under Title IX if one of
its teachers "was aided in carrying out the sexual harassment of
students by his or her position of authority with the institution."
Sexual Harassment Policy Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034,
12039 (1997). As the agency charged with administering and
enforcing Title IX, see 20 U. S. C. § 1682, the Department of
Education has a special interest in ensuring that federal funds are
not used in contravention of Title IX's mandate. It is therefore
significant that the Department's interpretation of the statute
wholly supports the conclusion that respondent is liable in damages
for Waldrop's sexual abuse of his student, which was made possible
only by Waldrop's affirmative misuse of his authority as her
teacher.
The reason why the common law imposes liability on the principal
in such circumstances is the same as the reason why Congress
included the prohibition against discrimination on the basis of sex
in Title IX: to induce school boards to adopt and enforce practices
that will minimize the danger that vulnerable students will be
exposed to such odious behavior. The rule that the Court has
crafted creates the opposite incentive. As long as school boards
can insulate themselves from knowledge about this sort of conduct,
they
to do."
Id., at 56a. Gebser was the only student to
attend Waldrop's summer advanced placement course, and the two
often had sexual intercourse during the time allotted for the
class. See id., at 60a. Gebser stated that she declined to report
the sexual relationship because "if I was to blow the whistle on
that, then I wouldn't be able to have this person as a teacher
anymore."
Id., at 62a. She also stated that Waldrop "was the
person in Lago administration ... who I most trusted, and he was
the one that I would have been making the complaint against."
Id., at 63a.
301
can claim immunity from damages liability.ll Indeed, the rule
that the Court adopts would preclude a damages remedy even if every
teacher at the school knew about the harassment but did not have
"authority to institute corrective measures on the district's
behalf."
Ante, at 277. It is not my function to determine
whether this newly fashioned rule is wiser than the established
common-law rule. It is proper, however, to suggest that the Court
bears the burden of justifying its rather dramatic departure from
settled law, and to explain why its opinion fails to shoulder that
burden.
III
The Court advances several reasons why it would "frustrate the
purposes" of Title IX to allow recovery against a school district
that does not have actual notice of a teacher's sexual harassment
of a student.
Ante, at 285 (internal quotation marks
omitted). As the Court acknowledges, however, the two principal
purposes that motivated the enactment of Title IX were: (1) "'to
avoid the use of federal resources to support discriminatory
practices'''; and (2) "'to provide individual citizens effective
protection against those practices.'"
Ante, at 286 (quoting
Cannon, 441 U. S., at 704). It seems quite obvious that both
of those purposes would be served-not frustrated-by providing a
damages remedy in a case of this kind. To the extent that the
Court's reasons for its policy choice have any merit, they suggest
that no damages should ever be awarded in a Title IX casein other
words, that our unanimous holding in
Franklin should be
repudiated.
11 The Court concludes that its holding "does not affect any
right of recovery that an individual may have against a school
district as a matter of state law or against the teacher in his
individual capacity under state law or under 42 U. S. C. § 1983."
Ante, at 292. In this case, of course, the District Court
denied petitioners' § 1983 claim on summary judgment, and it is
undisputed that the Texas Tort Claims Act, Tex. Civ. Prac. &
Rem. Code Ann. § 101.051 (1997), immunizes school districts from
tort liability in cases like this one.
302
302 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
First, the Court observes that at the time Title IX was enacted,
"the principal civil rights statutes containing an express right of
action did not provide for recovery of monetary damages at all."
Ante, at 285.
Franklin, however, forecloses this
reevaluation of legislative intent; in that case, we "evaluate[d]
the state of the law when the Legislature passed Title IX," 503 U.
S., at 71, and concluded that "the same contextual approach used to
justify an implied right of action more than amply demonstrates the
lack of any legislative intent to abandon the traditional
presumption in favor of all available remedies," id., at 72. The
Court also suggests that the fact that Congress has imposed a
ceiling on the amount of damages that may be recovered in Title VII
cases, see 42 U. S. C. § 1981a, is somehow relevant to the question
whether any damages at all may be awarded in a Title IX case.
Ante, at 286. The short answer to this creative argument is
that the Title VII ceiling does not have any bearing on when
damages may be recovered from a defendant in a Title IX case.
Moreover, this case does not present any issue concerning the
amount of any possible damages award.12
Second, the Court suggests that the school district did not have
fair notice when it accepted federal funding that it might be held
liable "'for a monetary award'" under Title IX.
Ante, at 287
(quoting
Franklin, 503 U. S., at 74). The Court cannot mean,
however, that respondent was not
12 The lower courts are not powerless to control the size of
damages verdicts. See n. 18,
infra. Courts retain the power
to order a remittitur, for example. In addition, the size of a jury
verdict presumably would depend on several factors, at least some
of which a school district could control. For example, one
important factor might be whether the district had adopted and
disseminated an effective policy on sexual harassment. See also
Dept. of Education, Office for Civil Rights, Sexual Harrassment
Policy Guidance: Harrassment of Students by School Employees, Other
Students, or Third Parties, 62 Fed. Reg. 12034, 12048, n. 35 (1997)
("[A] school's immediate and appropriate remedial actions are
relevant in determining the nature and extent of the damages
suffered by a plaintiff").
303
on notice that sexual harassment of a student by a teacher
constitutes an "intentional" violation of Title IX for which
damages are available, because we so held shortly before Waldrop
began abusing Gebser. See id., at 74-75. Given the fact that our
holding in
Franklin was unanimous, it is not unreasonable to
assume that it could have been foreseen by counsel for the
recipients of Title IX funds. Moreover, the nondiscrimination
requirement set out in Title IX is clear, and this Court held that
sexual harassment constitutes intentional sex discrimination long
before the sexual abuse in this case began. See
Meritor Savings
Bank, FSB v.
Vinson, 477 U. S. 57, 64 (1986).
Normally, of course, we presume that the citizen has knowledge of
the law.
The majority nevertheless takes the position that a school
district that accepts federal funds under Title IX should not be
held liable in damages for an intentional violation of that statute
if the district itself "was unaware of the discrimination."
Ante, at 287. The Court reasons that because administrative
proceedings to terminate funding cannot be commenced until after
the grant recipient has received notice of its noncompliance and
the agency determines that voluntary compliance is not possible,
see 20 U. S. C. § 1682, there should be no damages liability unless
the grant recipient has actual notice of the violation (and thus an
opportunity to end the harassment). See
ante, at
288-290.
The fact that Congress has specified a particular administrative
procedure to be followed when a subsidy is to be terminated,
however, does not illuminate the question of what the victim of
discrimination on the basis of sex must prove in order to recover
damages in an implied private right of action. Indeed, in
Franklin, 503 U. S., at 64, n. 3, we noted that the
Department of Education's Office of Civil Rights had declined to
terminate federal funding of the school district at issue-despite
its finding that a Title IX violation had occurred-because the
"district [had come] into compliance" with Title IX after the
harassment at issue. See
ante, at
304
304 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
STEVENS, J., dissenting
289. That fact did not affect the Court's analysis, much less
persuade the Court that a damages remedy was unavailable. Cf.
Cannon, 441 U. S., at 711 ("The fact that other provisions
of a complex statutory scheme create express remedies has not been
accepted as a sufficient reason for refusing to imply an otherwise
appropriate remedy under a separate section").
The majority's inappropriate reliance on Title IX's
administrative enforcement scheme to limit the availability of a
damages remedy leads the Court to require not only actual knowledge
on the part of "an official who at a minimum has authority to
address the alleged discrimination and to institute corrective
measures on the recipient's behalf," but also that official's
"refus[al] to take action," or "deliberate indifference" toward the
harassment.
Ante, at 290.13 Presumably, few Title IX
plaintiffs who have been victims of intentional discrimination will
be able to recover damages under this exceedingly high standard.
The Court fails to recognize that its holding will virtually
"render inutile causes of action authorized by Congress through a
decision that
no remedy is available."
Franklin, 503
U. S., at 74.
IV
We are not presented with any question concerning the
affirmative defenses that might eliminate or mitigate the recovery
of damages for a Title IX violation. It has been argued, for
example, that a school district that has adopted and vigorously
enforced a policy that is designed to prevent sexual harassment and
redress the harms that such conduct may produce should be
exonerated from damages liability.14
13 The only decisions the Court cites to support its adoption of
such a stringent standard are cases arising under a quite different
statute, 42
14 See Brief for National Education Association as
Amicus
Curiae 15 (proposing affirmative defense that "the entity had
adopted and has implemented an effective prevention and compliance
program").
305
The Secretary of Education has promulgated regulations directing
grant recipients to adopt such policies and disseminate them to
students.15 A rule providing an affirmative defense for districts
that adopt and publish such policies pursuant to the regulations
would not likely be helpful to respondent, however, because it is
not at all clear whether respondent adopted any such policy,16 and
there is no evidence that such a policy was made available to
students, as required by regulation.17
A theme that seems to underlie the Court's opinion is a concern
that holding a school district liable in damages might deprive it
of the benefit of the federal subsidy-that the damages remedy is
somehow more onerous than a possible termination of the federal
grant. See,
e. g.,
ante, at 290 (stating that "an
award of damages in a particular case might well exceed a
recipient's level of federal funding"). It is possible, of course,
that in some cases the recoverable damages, in either a Title IX
action or a state-law tort action, would
15 The school district must "adopt and publish grievance
procedures providing for prompt and equitable resolution of student
and employee complaints" of discrimination. 34 CFR § 106.8(b)
(1997). The district also must inform students and their parents of
Title IX's antidiscrimination requirement. § 106.9.
16 Factual questions remain with respect to whether respondent
had an adequate antidiscrimination policy. Compare App. 44a-45a
(affidavit of superintendent/Title IX coordinator Virginia Collier)
(stating that the district had a policy) with Plaintiffs' Motion
for Partial Summary Judgment, Record 332; id., Exh. 2 (Collier
deposition), at 42, 44 (stating that the district had no formal
policy).
17The district's superintendent stated that she did not remember
if any handbook alerting students to grievance procedures was
disseminated to students. App. 72a-73a (Collier deposition).
Moreover, Gebser herself stated: "If I had known at the beginning
what I was supposed to do when a teacher starts making sexual
advances towards me, I probably would have reported it. I was
bewildered and terrified and I had no idea where to go from where I
was."
Id., at 64a-65a.
306
306 GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DIST.
exceed the amount of a federal grant.18 That is surely not
relevant to the question whether the school district or the injured
student should bear the risk of harm-a risk against which the
district, but not the student, can insure. It is not clear to me
why the well-settled rules of law that impose responsibility on the
principal for the misconduct of its agents should not apply in this
case. As a matter of policy, the Court ranks protection of the
school district's purse above the protection of immature high
school students that those rules would provide. Because those
students are members of the class for whose special benefit
Congress enacted Title IX, that policy choice is not faithful to
the intent of the policymaking branch of our Government.
I respectfully dissent.
JUSTICE GINSBURG, with whom JUSTICE SOUTER and JUSTICE BREYER
join, dissenting.
JUSTICE STEVENS' opinion focuses on the standard of school
district liability for teacher-on-student harassment in secondary
schools. I join that opinion, which reserves the question whether a
district should be relieved from damages liability if it has in
place, and effectively publicizes and enforces, a policy to curtail
and redress injuries caused by sexual harassment.
Ante, at
304-305. I think it appropriate to answer that question for these
reasons: (1) the dimensions of a claim are determined not only by
the plaintiff's
18 Amici curiae National School Boards Association and
the New Jersey School Boards Association point to a $1.4 million
verdict in a recent Title IX case. See Brief for National School
Boards Association et al. as
Amici Curiae 5, and n. 4
(citing
Canutillo Independent School Dist. v.
Leija,
101 F.3d
393 (CA5 1996), cert. denied, 520 U. S. 1265 (1997));
see also Brief for TASB Legal Assistance Fund et al. as
Amici
Curiae 23 (same). Significantly, however, the District Judge in
that case refused to enter a judgment on that verdict; the judge
instead ordered a new trial on damages, limited to medical and
mental health treatment and special education expenses. See 887 F.
Supp. 947, 957 (WD Tex. 1995), rev'd,
101 F.3d
393 (CA5 1996).
307
allegations, but by the allowable defenses; (2) this Court's
pathmarkers are needed to afford guidance to lower courts and
school officials responsible for the implementation of Title
IX.
In line with the tort law doctrine of avoidable consequences,
see generally C. McCormick, Law of Damages 127159 (1935), I would
recognize as an affirmative defense to a Title IX charge of sexual
harassment, an effective policy for reporting and redressing such
misconduct. School districts subject to Title IX's governance have
been instructed by the Secretary of Education to install procedures
for "prompt and equitable resolution" of complaints, 34 CFR §
106.8(b) (1997), and the Department of Education's Office of Civil
Rights has detailed elements of an effective grievance process,
with specific reference to sexual harassment, 62 Fed. Reg. 12034,
12044-12045 (1997).
The burden would be the school district's to show that its
internal remedies were adequately publicized and likely would have
provided redress without exposing the complainant to undue risk,
effort, or expense. Under such a regime, to the extent that a
plaintiff unreasonably failed to avail herself of the school
district's preventive and remedial measures, and consequently
suffered avoidable harm, she would not qualify for Title IX
relief.
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