Davis v. Monroe Cty. Board of Ed. ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-9121.
Aurelia DAVIS, a/n/f of Lashonda D., Plaintiff-Appellant,
v.
MONROE COUNTY BOARD OF EDUCATION, Charles Dumas and Bill Querry,
Defendants-Appellees.
Feb. 14, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 94-CV-140-4MAC(WDO), Wilbur D. Owens,
Judge.
Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
BARKETT, Circuit Judge:
Aurelia Davis, as mother and next friend of LaShonda D.,
appeals the district court's order dismissing her claims under
Title IX and § 1983 against the Monroe County Board of Education
("Board"), Board Superintendent Charles Dumas and elementary school
Principal Bill Querry (collectively "defendants"). Davis'
complaint for injunctive relief and compensatory damages alleged
that LaShonda was sexually harassed on a continuous basis by a
male, fifth-grade classmate, that defendants knew of the harassment
yet failed to take any meaningful action to stop it and protect
her, and that LaShonda suffered harm as a result of their failure
to act. The defendants' failure to act, Davis asserted,
discriminated against LaShonda and denied her the benefits of a
public education in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-88 (1988). Davis also
claimed that defendants' omissions violated LaShonda's liberty
interest to be free from sexual harassment and from intrusions on
her personal security in violation of her substantive due process
rights under the United States Constitution.
The district court dismissed the Title IX claim against the
Board, concluding that
[t]he sexually harassing behavior of a fellow fifth grader is
not part of a school program or activity. Plaintiff does not
allege that the Board or an employee of the Board had any role
in the harassment. Thus, any harm to LaShonda was not
proximately caused by a federally-funded educational provider.
Aurelia D. v. Monroe County Bd. of Educ., 862 F. Supp. 363, 367
(M.D.Ga.1994). The court also dismissed the § 1983 due process
claims against the Board and the individual defendants.
On appeal, Davis argues that the court erred by dismissing her
Title IX claim against the Board1 and by dismissing her § 1983 due
process claims against all defendants. She also contends that she
made an equal protection claim on which the district court failed
to rule. Because we find them without merit, we reject Davis'
arguments regarding the due process and equal protection claims
without further discussion. See 11th Cir. Rule 36-1. For the
reasons that follow, however, we conclude that Davis' allegations
that the Board knowingly permitted a hostile environment created by
another student's sexual harassment of LaShonda state a valid Title
IX claim against the Board and accordingly we reverse the dismissal
of her complaint as to that claim.
I. BACKGROUND
Davis' factual allegations, presumed as true in our review of
1
Davis does not appeal the district court's dismissal of the
Title IX claims against the individual defendants.
a motion to dismiss, Duke v. Cleland, 5 F.3d 1399, 1402 (11th
Cir.1993), can be summarized as follows. Over the six-month period
between December 1992 and May 1993, "G.F.," a fellow fifth-grader
at a Monroe County elementary school, sexually harassed and/or
abused LaShonda by attempting to fondle her, fondling her, and
directing offensive language toward her. In December, for
instance, G.F. attempted to touch LaShonda's breasts and vaginal
area, telling her, "I want to get in bed with you," and "I want to
feel your boobs." Two similar incidents occurred in January 1993.
In February, G.F. placed a doorstop in his pants and behaved in a
sexually suggestive manner toward LaShonda. Other incidents
occurred later in February and in March. In April, G.F. rubbed
against LaShonda in the hallway in a sexually suggestive manner.
G.F.'s actions increased in severity until he finally was charged
with and pled guilty to sexual battery in May 1993.
LaShonda reported G.F. to her teachers and her mother after
each of the incidents and, after all but one of the incidents,
Davis called the teacher and/or the principal to see what could be
done to protect her daughter. The requests for protection went
unfulfilled. Following one incident, for example, LaShonda and
other girls whom G.F. had sexually harassed asked their teacher for
permission to report G.F.'s harassment to the principal. The
teacher denied the request, telling the girls, "[i]f he [the
principal] wants you, he'll call you." After LaShonda told her
mother of another incident of harassment, adding that she "didn't
know how much longer she could keep him off her," Davis spoke with
Principal Querry and asked what action would be taken to protect
LaShonda. Querry responded, "I guess I'll have to threaten him
[G.F.] a little bit harder," and he later asked LaShonda "why she
was the only one complaining." LaShonda and Davis also asked that
LaShonda, who had an assigned seat next to G.F., be allowed to move
to a different seat. Even this request was refused and she was not
allowed to move her seat away from G.F. until after she had
complained for over three months. School officials never removed
or disciplined G.F. in any manner for his sexual harassment of
LaShonda.
Finally, the complaint alleged that G.F.'s uncurbed and
unrestrained conduct severely curtailed LaShonda's ability to
benefit from her elementary school education, lessening her
capacity to concentrate on her schoolwork and causing her grades,
previously all As and Bs, to suffer. The harassment also had a
debilitating effect on her mental and emotional well-being, causing
her to write a suicide note in April 1993.
II. STANDARD OF REVIEW
Reviewing the claim de novo, we will uphold the dismissal
only if it appears beyond a doubt that the allegations in the
complaint do not constitute a claim upon which relief may be
granted. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th
Cir.1994). "The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Taylor v. Ledbetter, 818 F.2d 791, 794 n. 4
(11th Cir.1987) (en banc), cert. denied, 489 U.S. 1065, 109 S. Ct.
1337, 103 L. Ed. 2d 808 (1989) (quotation omitted).
III. DISCUSSION
Title IX provides in pertinent part as follows:
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance....
20 U.S.C. § 1681(a) (1988). It is undisputed that the Monroe
County School System is a recipient of federal financial
assistance. Accordingly, the issue before us is whether the
Board's alleged failure to take action to stop G.F.'s sexual
harassment of LaShonda "excluded [her] from participation in, ...
denied [her] the benefits of, or ... subjected [her] to
discrimination under" the Monroe County educational system on the
basis of her sex.
Davis argues that the Board's failure to stop the sexual
harassment discriminated against LaShonda and denied her the
benefits of her education on the basis of sex. In support of this
argument, Davis urges us to apply sexual harassment principles from
the more extensive caselaw of Title VII, which prohibits sex
discrimination in the workplace.2 In relevant part, Title VII
requires an employer to take steps to assure that the working
environment of its employees is free from sexual harassment 3 that
2
Title VII makes it unlawful "for an employer ... to
discriminate against any individual ... because of such
individual's ... sex." 42 U.S.C. § 2000e-2(a)(1) (1988).
3
Sexual harassment involves unwelcome sexual advances,
requests for sexual favors, and other unwelcome verbal or
physical conduct of a sexual nature. 29 C.F.R. § 1604.11(a)
(1991). Such harassment constitutes actionable sex
discrimination in the workplace either as "quid pro quo" sexual
harassment, which conditions employment benefits upon sexual
favors, or as "hostile environment" sexual harassment, which
creates an intimidating, hostile or offensive working environment
that unreasonably interferes with an individual's work
performance. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
is "sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment."
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399,
2405, 91 L. Ed. 2d 49 (1986) (quotation omitted). The Board
contends, however, that Title VII principles are not applicable to
Title IX cases such as the present one.
Enacted in 1972, Title IX was designed to protect individuals
from sex discrimination by denying federal financial aid to those
educational institutions that bear responsibility for sexually
discriminatory practices. Cannon v. University of Chicago, 441
U.S. 677, 704 & n. 36, 99 S. Ct. 1946, 1961 & n. 36, 60 L. Ed. 2d 560
(1979) (citing 117 Cong.Rec. 39252 (1971)). "It is a strong and
comprehensive measure which ... is needed if we are to provide
women with solid legal protection as they seek education and
training for later careers...." Id. at 704 n. 36, 99 S. Ct. at 1961
n. 36 (quoting Sen. Birch Bayh, 118 Cong.Rec. 5806-07 (1972)). To
accomplish this goal, employees and students of federally funded
educational institutions who are discriminated against on the basis
of sex have a private right of action under Title IX for injunctive
relief and compensatory damages. Id. at 717, 99 S.Ct. at 1968;
Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75-76, 112
S. Ct. 1028, 1037-38, 117 L. Ed. 2d 208 (1992). Moreover, in
interpreting Title IX, "[t]here is no doubt that if we are to give
[it] the scope that its origins dictate, we must accord it a sweep
as broad as its language." North Haven Bd. of Educ. v. Bell, 456
U.S. 512, 521, 102 S. Ct. 1912, 1918, 72 L. Ed. 2d 299 (1982)
62, 65, 106 S. Ct. 2399, 2403, 2404, 91 L. Ed. 2d 49 (1986).
(quotation omitted).
Although the Supreme Court recognized a private right of
action under Title IX in 1979, see Cannon, 441 U.S. at 717, 99
S. Ct. at 1968, until recently the denial of financial aid was the
only remedy available to a Title IX plaintiff. Accordingly, early
lawsuits brought under Title IX primarily challenged discriminatory
practices in athletic programs and admissions policies. See, e.g.,
id. at 680, 99 S.Ct. at 1949. In 1992, however, the Supreme Court
unanimously allowed monetary damages to private plaintiffs for
intentional violations of Title IX, see Franklin, 503 U.S. at 76,
112 S.Ct. at 1038, increasing the number of Title IX suits brought
by employees and students alleging that their educational
institutions subjected them to sexual discrimination.
In reviewing sexual discrimination claims by teachers and
other employees of educational institutions under Title IX, courts
have regularly applied Title VII principles. In Lipsett v.
University of Puerto Rico, 864 F.2d 881 (1st Cir.1988), for
example, the plaintiff was a female medical student in the
residency program and also was an employee of the University. Id.
at 886. She alleged that University hospital supervisory personnel
had subjected her to an atmosphere of sexual harassment at the
hospital. Id. at 886-92. In determining that Title VII sexual
harassment principles applied to this "mixed employment-training"
context, the Second Circuit relied on Title IX's legislative
history, "which strongly suggests that Congress meant for similar
substantive standards to apply under Title IX as had been developed
under Title VII." Id. at 897; see also Preston v. Commonwealth of
Virginia ex rel. New River Community College, 31 F.3d 203, 207 (4th
Cir.1994); Mabry v. State Bd. of Community Colleges, 813 F.2d 311,
316 n. 6 (10th Cir.1987).
Courts also have relied upon Title VII when evaluating Title
IX sexual harassment claims by students. In determining that Title
IX prohibits a teacher's quid pro quo sexual harassment of a
student, for example, one court observed that
[it is] perfectly reasonable to maintain that academic
achievement conditioned upon submission to sexual demands
constitutes sex discrimination in education, just as questions
of job retention or promotion tied to sexual demands from
supervisors have become increasingly recognized as potential
violations of Title VII's ban against sex discrimination in
employment....
Alexander v. Yale Univ., 459 F. Supp. 1, 4 (D.Conn.1977), aff'd, 631
F.2d 178 (2d Cir.1980). Similarly, in recognizing that Title IX
prohibits the existence of a hostile environment due to a teacher's
sexual harassment of a student, another court observed that
"[t]hough the sexual harassment "doctrine' has generally developed
in the context of Title VII, these [Title VII] guidelines seem
equally applicable to Title IX." Moire v. Temple Univ. Sch. of
Medicine, 613 F. Supp. 1360, 1366 n. 2 (E.D.Pa.1985), aff'd, 800
F.2d 1136 (3d Cir.1986).
Nonetheless, in Franklin v. Gwinnett County Public Schools,
911 F.2d 617 (11th Cir.1990), rev'd, 503 U.S. 60, 112 S. Ct. 1028,
117 L. Ed. 2d 208 (1992), this court declined to apply a Title VII
analysis to the question of whether compensatory damages were
available in a suit brought by a student under Title IX. Id. at
622. On appeal, however, the Supreme Court reversed, and relied
upon Title VII principles and authority in holding that Title IX
authorizes an award of compensatory damages. Franklin v. Gwinnett
County Pub. Schs., 503 U.S. 60, 74-75, 112 S. Ct. 1028, 1037, 117
L. Ed. 2d 208 (1992). Franklin involved a high-school student's
allegations that a teacher had sexually harassed and assaulted her
and that school officials, who had actual knowledge of the
misconduct, had failed to intervene. Id. at 63-64, 112 S.Ct. at
1031. In rejecting the argument that the specific language of
Title IX did not give educational institutions sufficient notice of
their liability for damages for such discrimination, the Supreme
Court 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[s]' on
the basis of sex." Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 64 [106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49] (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.
Franklin, 503 U.S. at 75, 112 S.Ct. at 1037. Importantly, the
Court relied on Title VII principles and cited Meritor, a Title VII
case, to resolve the issue.
Subsequently, several courts have understood Franklin to
authorize the application of Title VII standards to a student's
Title IX sexual harassment claim against her school. In Murray v.
New York University College of Dentistry, 57 F.3d 243 (2d
Cir.1995), the Second Circuit looked to Title VII in addressing a
student's Title IX claim that she was subjected to a sexually
hostile educational environment created by a patient at the dental
school. Id. at 248. The district court had dismissed the
complaint after determining that the facts alleged were
insufficient to show that the college knew that plaintiff was
subjected to a hostile environment created by the patient's
persistent sexual advances. Id. at 247-48. In considering the
appropriate standard for determining whether the college had notice
of the hostile environment, the Second Circuit observed: "[t]he
[Franklin ] Court's citation of Meritor ..., a Title VII case, in
support of Franklin 's central holding indicates that, in a Title
IX suit for gender discrimination based on sexual harassment of a
student, an educational institution may be held liable under
standards similar to those applied in cases under Title VII."
Murray, 57 F.3d at 249. Upon application of Title VII standards,
the Second Circuit determined that the facts alleged were
insufficient to show that the college had notice of the hostile
environment. Id. at 249-51.
Similarly, the District Court for the Northern District of
California relied on Franklin in determining that a student may
state a Title IX claim for hostile environment sexual harassment
where the harassment is initiated by fellow students. In Doe v.
Petaluma School District, 830 F. Supp. 1560 (N.D.Cal.1993), the
plaintiff alleged that she was harassed when she was a seventh- and
eighth-grade student in the defendant school district. The
harassment allegedly began early in plaintiff's seventh-grade year,
when two male students approached her and said "I hear you have a
hot dog in your pants." Id. at 1564. Over the next year and a
half, other students regularly made similarly offensive remarks to
plaintiff and spread sexual rumors and innuendoes about her. Id.
During this period, plaintiff and her parents spoke with her school
counselor on numerous occasions and asked him to stop the
harassment. The counselor told them he would take care of
everything, but he initially did nothing more than warn some of the
offenders, stating that "boys will be boys." Id. at 1564-65.
After the harassment and complaints had continued for more than a
year, the counselor suspended two of the students. Id. at 1565.
By that time, however, going to school had become emotionally
difficult for plaintiff, and she ultimately transferred to a
private school at her parents' expense in order to avoid the
harassment. Id. at 1565-66.
Plaintiff filed suit under Title IX against the school
district and several school officials for their failure to take
action to stop the sexual harassment inflicted upon her by her
classmates. Id. at 1563. Denying defendants' motion to dismiss
for failure to state a claim, the court held that Title IX
proscribes the same type of hostile environment sexual harassment
prohibited by Title VII. Id. at 1571-75. In addition to relying
on Franklin and Title IX's legislative history, the court looked to
findings of the Department of Education's Office of Civil Rights
("OCR"). Petaluma, 830 F. Supp. at 1572 (citing Patricia H. v.
Berkeley Unified Sch. Dist., 830 F. Supp. 1288 (N.D.Cal.1993)).
These findings demonstrated an OCR belief that "an educational
institution's failure to take appropriate response to
student-to-student sexual harassment of which it knew or had reason
to know is a violation of Title IX." Id. at 1573 (citations
omitted). The court concluded that to deny recovery to a sexually
harassed student under the hostile environment theory "would
violate the Supreme Court's command to give Title IX a sweep as
broad as its language." Id. at 1575.
We likewise find it appropriate to apply Title VII principles
to the question before us. As discussed in the foregoing cases,
such application is supported by Franklin, Title IX's legislative
history and the Supreme Court's mandate that we read Title IX
broadly, as well as by findings of the OCR. In particular, the OCR
has found that a student is subjected to sexual harassment when
"unwelcome sexual advances, requests for sexual favors, or other
sex-based verbal or physical conduct ... has the purpose or effect
of unreasonably interfering with the individual's education
creating an intimidating, hostile, or offensive environment."
Letter of Findings by John E. Palomino, Regional Civil Rights
Director, Region IV (July 24, 1992), Docket No. 09-92-6002, at 2.4
The OCR also has found that "[w]hen individuals who are
participating in a program or activity operated by an educational
institution are subjected to sexual harassment, they are receiving
treatment that is different from others." Id. Finally, the OCR
has found that "[i]f the harassment is carried out by non-agent
students, the institution may nevertheless be found in
noncompliance with Title IX if it failed to respond adequately to
actual or constructive notice of the harassment." Id.; see also
4
OCR Letters of Findings are entitled to deference "as they
express the opinion of an agency charged with implementing Title
IX and its regulations." Petaluma, 830 F. Supp. at 1573. As the
Supreme Court has stated, "this Court normally accords great
deference to the interpretation, particularly when it is
longstanding, of the agency charged with the statute's
administration." North Haven, 456 U.S. at 522 n. 12, 102 S. Ct.
at 1918 n. 12.
Letter of Findings by Kenneth A. Mines, Regional Civil Rights
Director, Region V (April 27, 1993), Docket No. 05-92-1174, at 2-4.
Thus, in informally determining that Title IX prohibits peer sexual
harassment in the schools, the OCR has relied on Title VII hostile
environment principles.
Application of these principles to Title IX claims by students
recognizes, as the Supreme Court acknowledged in Franklin, that a
student should have the same protection in school that an employee
has in the workplace. See Franklin, 503 U.S. at 74-75, 112 S. Ct.
at 1037. Indeed, where there are distinctions between the school
environment and the workplace, they "serve only to emphasize the
need for zealous protection against sex discrimination in the
schools." Patricia H., 830 F. Supp. at 1292-93. The ability to
control and influence behavior exists to an even greater extent in
the classroom than in the workplace, as students look to their
teachers for guidance as well as for protection. The damage caused
by sexual harassment also is arguably greater in the classroom than
in the workplace, because the harassment has a greater and longer
lasting impact on its young victims, and institutionalizes sexual
harassment as accepted behavior. Moreover, as economically
difficult as it may be for adults to leave a hostile workplace, it
is virtually impossible for children to leave their assigned
school. Finally, "[a] nondiscriminatory environment is essential
to maximum intellectual growth and is therefore an integral part of
the educational benefits that a student receives. A sexually
abusive environment inhibits, if not prevents, the harassed student
from developing her full intellectual potential and receiving the
most from the academic program." Id. at 1293 (quotation omitted).
Thus, we 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.5
Cf. Franklin, 503 U.S. at 74-75, 112 S. Ct. at 1037; see Murray, 57
F.3d at 249; Petaluma, 830 F. Supp. at 1575. But see Seamons v.
Snow, 864 F. Supp. 1111, 1118 (D.Utah 1994).
In this case, by requiring that a school employee commit the
harassing action in order for Davis to state a claim, the district
court failed to recognize the nature of a claim for hostile
environment sexual harassment. The court dismissed the complaint
because, in its view, "any harm to LaShonda was not proximately
5
The Board argues that Title VII caselaw is inapplicable to
Title IX because Title IX was enacted under the spending clause.
The Supreme Court, however, has relied on Title VII in analyzing
claims under Title VI, which also was enacted under the spending
clause. In Guardians Association v. Civil Service Commission,
463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983), for example,
the Court found that Title VI's prohibition of discrimination was
"subject to the construction given the antidiscrimination
provision in Title VII in Griggs v. Duke Power Co. [401 U.S. 424,
91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) ]...." Guardians, 463 U.S.
at 592, 103 S.Ct. at 3227. The Court also adopted Title VII's
"business necessity" defense to analyze disparate impact claims
in a Title VI case involving student placement. See Board of
Educ. v. Harris, 444 U.S. 130, 151, 100 S. Ct. 363, 375, 62
L. Ed. 2d 275 (1979). Likewise, we have utilized Title VII to
analyze a disparate impact claim under Title VI, stating that
"[t]he elements of a disparate impact claim may be gleaned by
reference to cases decided under Title VII." Georgia State Conf.
of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th
Cir.1985). Thus, the fact that Title VII is not a spending
clause statute has not been a bar to importing its standards into
Title VI, and therefore is no bar to importing its standards into
Title IX.
caused by a federally-funded educational provider" and neither the
Board nor an employee of the Board "had any role in the
harassment." Aurelia D., 862 F. Supp. at 367 (emphasis added). The
court's rationale thus implicitly limited sexual harassment actions
to quid pro quo harassment, which conditions benefits or
maintenance of the status quo upon sexual favors. This was not
Davis' claim. The evil Davis sought to redress through her hostile
environment claim was not the direct act of a school official
demanding sexual favors, but rather the officials' failure to take
action to stop the offensive acts of those over whom the officials
exercised control. Title VII recognizes this distinction and
requires employers to take steps to assure that their employees'
working environment is free from sexual harassment regardless of
whether that harassment is caused by the sexual demands of a
supervisor or by the sexually hostile environment created by
supervisors or co-workers. Henson v. Dundee, 682 F.2d 897, 905
(11th Cir.1982).6 Under this concept, when an employer knowingly
fails to take action to remedy a hostile environment caused by one
6
Other circuits also recognize employer liability under
Title VII based on the employer's failure to take action to
remedy a hostile environment created by co-workers. See Smith v.
Bath Iron Works, 943 F.2d 164, 165-66 (1st Cir.1991); Karibian
v. Columbia Univ., 14 F.3d 773, 779 (2d Cir.), cert. denied, ---
U.S. ----, 114 S. Ct. 2693, 129 L. Ed. 2d 824 (1994); Levendos v.
Stern Entertainment, Inc., 909 F.2d 747, 749 (3d Cir.1990);
DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d
591, 593 (5th Cir.1995); Kauffman v. Allied Signal, Inc.,
Autolite Div., 970 F.2d 178, 182 (6th Cir.), cert. denied, 506
U.S. 1041, 113 S. Ct. 831, 121 L. Ed. 2d 701 (1992); Carr v.
Allison Gas Turbine Div. Gen. Motors, 32 F.3d 1007, 1009 (7th
Cir.1994); Hall v. Gus Construction Co., 842 F.2d 1010, 1015-16
(8th Cir.1988); Nichols v. Frank, 42 F.3d 503, 508 (9th
Cir.1994); Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1345-46
(10th Cir.1990).
co-worker's sexual harassment of another, the employer
"discriminate[s] against ... an[ ] individual" in violation of
Title VII, 42 U.S.C. § 2000e-2(a)(1).
Likewise, when an educational institution knowingly fails to
take action to remedy a hostile environment caused by a student's
sexual harassment of another, the harassed student has "be[en]
denied the benefits of, or be[en] subjected to discrimination
under" that educational program in violation of Title IX, 20 U.S.C.
§ 1681(a). Just as a working woman should not be required to "run
a gauntlet of sexual abuse in return for the privilege of being
allowed to work and make a living," Meritor, 477 U.S. at 67, 106
S.Ct. at 2405 (quotation omitted), a female student should not be
required to run a gauntlet of sexual abuse in return for the
privilege of being allowed to obtain an education.
Having determined that Title IX encompasses a claim for a
hostile learning environment created by peer sexual harassment, we
must consider the sufficiency of Davis' allegations. The elements
a plaintiff must prove to succeed in this type of sexual harassment
case are: (1) that she is a member of a protected group; (2) that
she was subject to unwelcome sexual harassment; (3) that the
harassment was based on sex; (4) that the harassment was
sufficiently severe or pervasive so as to alter the conditions of
her education and create an abusive educational environment; and
(5) that some basis for institutional liability has been
established. Cf. Meritor, 477 U.S. at 66-73, 106 S.Ct. at 2405-08;
see also Harris v. Forklift Sys. Inc., --- U.S. ----, ---- - ----,
114 S. Ct. 367, 370-71, 126 L. Ed. 2d 295 (1993); Lipsett, 864 F.2d
at 898-902.
Assumed as true, the facts alleged in the complaint, together
with all reasonable inferences therefrom, satisfy these elements.
There is no question that the allegations satisfy the first three
requirements. First, as a female, LaShonda is a member of a
protected group. Second, she was subject to unwelcome sexual
harassment in the form of "verbal and physical conduct of a sexual
nature." 29 C.F.R. § 1604.11(a). Third, the harassment LaShonda
faced clearly was on the basis of her sex.
As to the fourth requirement, we recognize that a hostile
environment in an educational setting is not created by simple
childish behavior or by an offensive utterance, comment, or
vulgarity. Rather, Title IX is violated "when the [educational
environment] is permeated with "discriminatory intimidation,
ridicule, and insult' that is "sufficiently severe or pervasive to
alter the conditions of the victim's [environment] and create an
abusive environment,' " Harris, --- U.S. at ----, 114 S. Ct. at 370
(quoting Meritor, 477 U.S. at 64-65, 106 S.Ct. at 2404) (internal
citations omitted). In determining whether a plaintiff has
established that an environment is hostile or abusive, a court must
be particularly concerned with (1) the frequency of the abusive
conduct; (2) the conduct's severity; (3) whether it is physically
threatening or humiliating rather than merely offensive; and (4)
whether it unreasonably interferes with the plaintiff's
performance. Id. at ----, 114 S.Ct. at 371. The Court has
explained that these factors must be viewed both objectively and
subjectively. If the conduct is not so severe or pervasive that a
reasonable person would find it hostile or abusive, it is beyond
Title IX's purview. Similarly, if the plaintiff does not
subjectively perceive the environment to be abusive, then the
conduct has not actually altered the conditions of her learning
environment, and there is no Title IX violation. Id. at ---- - ---
-, 114 S. Ct. at 370-71.
Turning to the case before us in light of the relevant
factors, we find the five months of alleged harassment sufficiently
severe and pervasive to have altered the conditions of LaShonda's
learning environment from both an objective and a subjective
standpoint: (1) G.F. engaged in abusive conduct toward LaShonda on
at least eight occasions; (2) the conduct was sufficiently severe
to result in criminal charges against G.F.; (3) the conduct, such
as the groping and requests for sex, was physically threatening and
humiliating rather than merely offensive; and (4) the conduct
unreasonably interfered with LaShonda's academic performance,
resulting in the substantial deterioration of her grades and
emotional health. The facts alleged go far beyond simple
horseplay, childish vulgarities or adolescent flirting.
Finally, we consider the fifth and final element—whether any
basis for the Board's liability has been shown. Under Title VII,
whether the harassing conduct of a supervisor or co-worker should
be imputed to the employer is determined in accordance with
common-law principles of agency. See Meritor, 477 U.S. at 72, 106
S.Ct. at 2408; Murray, 57 F.3d at 249. Under the agency theory of
respondeat superior, this court holds employers liable for a
hostile environment created by a co-worker where the plaintiff can
show that "the employer knew or should have known of the harassment
in question and failed to take prompt remedial action." Henson,
682 F.2d at 905. An employee can demonstrate that the employer
knew of the harassment "by showing that she complained to higher
management of the harassment or by showing the pervasiveness of the
harassment, which gives rise to the inference of knowledge or
constructive knowledge." Id. (citation omitted).
In this case, Davis has alleged that she told the principal—a
higher level manager—of the harassment on several occasions. She
also alleged that at least three separate teachers, in addition to
the principal, had actual and repetitive knowledge from LaShonda,
her mother and other students. Finally, Davis alleged that despite
this knowledge, the school officials failed to take prompt and
remedial action to end the harassment.7 These allegations
regarding institutional liability, as well as the other
allegations, are sufficient to establish a prima facie claim under
Title IX for sexual discrimination due to the Board's failure to
take action to remedy a sexually hostile environment.
IV. CONCLUSION
In light of the foregoing, we affirm the district court's
judgment with the exception of its dismissal of the Title IX claim
against the Board. We reverse the district court's dismissal of
that claim and remand for proceedings consistent herewith.
AFFIRMED in part; REVERSED in part; REMANDED.
7
The complaint also alleged that during the time of the
harassment, the Board had no policy prohibiting the sexual
harassment of students in its schools, and had not provided any
policies or training to its employees on how to respond to
student-on-student sexual harassment.
BIRCH, Circuit Judge, concurring in part and dissenting in
part:
Although I concur in the court's affirmance of the district
court's dismissal of Davis's section 1983 claim, I disagree with
the majority's holding that Davis's allegations state a valid claim
against the Monroe County Board of Education under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1990 &
Supp.1995) ("Title IX").
This case does not involve allegations that an employee of the
school district sexually harassed LaShonda D., but rather that the
school district negligently failed to prevent another student from
harassing LaShonda. The majority is correct in noting that the
Supreme Court has held that "Title IX is enforceable through an
implied right of action." Franklin v. Gwinnett County Pub. Sch.,
503 U.S. 60, 65, 112 S. Ct. 1028, 1032, 117 L. Ed. 2d 208 (1992)
(citing Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct.
1946, 60 L. Ed. 2d 560 (1979)). However, Franklin involved a
high-school student's allegations that a teacher had sexually
harassed and assaulted her, and that school officials, who had
actual knowledge of the teacher's conduct, failed to intervene.
503 U.S. at 63-64, 112 S. Ct. at 1031-1032. The student-on-student
sexual harassment alleged in this case is analytically quite
distinct from that in Franklin, and the majority makes an
unprecedented extension in holding that Title IX encompasses a
claim of hostile environment sexual harassment based on the conduct
of a student. There is no indication in the language of Title IX
that such a cause of action was intended to be covered by its
scope; rather, the statute states that "[n]o person in the United
States shall, on the basis of sex, ... be subjected to
discrimination under any educational program or activity receiving
Federal financial assistance." 20 U.S.C. § 1681(a). In this case,
the school board, which is clearly an educational "program or
activity" under 20 U.S.C. § 1687, is not alleged to have committed
any act of harassment against LaShonda, nor is any employee of the
school board. Rather, the plaintiff seeks to hold the school board
liable for negligently failing to prevent another student, not its
employee, from sexually harassing LaShonda. In my opinion, this
student-on-student sexual harassment case clearly falls outside the
purview of Title IX.
Even if I were to accept the majority's conclusion that Title
IX encompasses student-on-student sexual harassment, I would limit
that holding to intentional conduct on the part of the school
board. Here, what is alleged is that the school board was
negligent in failing to intervene to prevent the recurring
student-on-student harassment. The majority relies on Franklin in
reaching its conclusion that Title IX covers such behavior, even
though the Franklin case involved intentional behavior on the part
of a teacher; absent an indication to the contrary, Franklin
should be limited to its facts. But rather than do this, the
majority not only broadly reads it to cover student-on-student
sexual harassment, but also to cover negligent behavior on the part
of the school board.
Lastly, I would limit the remedy available to a plaintiff in
the case of unintentional violations of Title IX to injunctive
relief. Franklin involved intentional discrimination by the school
board on the basis of sex, and thus involved an intentional
violation of Title IX. The Supreme Court has held that in the case
of intentional violations of Title IX, monetary damages are
available to the victim of the sexual harassment. Franklin, 503
U.S. 73-75, 112 S. Ct. at 1037. What the Supreme Court did not
decide in Franklin, however, was whether monetary damages are
available in cases involving unintentional violations of Title IX.
Most courts have interpreted Title IX along the same lines as
similar statutes, such as Title VI of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000d-2000d-4a (1994 & Supp.1995). Since the Supreme
Court has expressly found that Title VI does not support a monetary
damages remedy for Title VI violations not involving intentional
discrimination, Guardians Ass'n v. Civil Service Comm'n, 463 U.S.
582, 602-03, 103 S. Ct. 3221, 3232-33, 77 L. Ed. 2d 866 (1983), we
similarly should find that monetary damages are limited to
intentional violations of Title IX.1 Therefore, even if I were to
accept the majority's argument that Title IX applies to the conduct
at issue in this case, I would limit the remedy available to the
plaintiff to injunctive relief.
Accordingly, I CONCUR in part and DISSENT in part.
1
At least one federal district court has reached this
conclusion as well. See Doe v. Petaluma City Sch. Dist., 830
F. Supp. 1560, 1571 (N.D.Cal.1993) (finding that "Title IX does
prohibit hostile environment sexual harassment but that to obtain
damages (as opposed to declaratory or injunctive relief), one
must allege and prove intentional discrimination on the basis of
sex by an employee of the educational institution"). The Doe
court specifically held that "[t]o obtain damages, it is not
enough that the institution knew or should have known of the
hostile environment and failed to take appropriate action to end
it." Id.