CARNES, Circuit Judge, concurring specially:
I concur in the holding that Title IX does not create a cause
of action against public school boards or officials for failure to
prevent or remedy student-student sexual harassment. In my view,
that holding is correct for essentially those reasons stated in
Parts I, II, III A, and IV of Judge Tjoflat’s opinion, and I join
those parts of it, which constitute the opinion of the Court.
However, for the reasons explained below, I do not join Parts III
B and C of Judge Tjoflat’s opinion, which express only his own
views.1
I.
The “Hobson’s choice” or “whipsaw liability” discussion in
Part III B of the opinion is based upon a fundamentally erroneous
premise. If school officials could be sued for failing to prevent
or remedy student-student sexual harassment, that part of the
opinion says, the potential liability would amount to a financial
incentive to punish the accused harassers, which would or could
render school officials impermissibly biased and require recusal.
Of course, a student does have a property interest in a public
education which is protected by the Due Process Clause of the
Fourteenth Amendment.2 And, due process does require that a
1
Parts I, II, III A, and IV of Judge Tjoflat’s opinion
constitute the opinion of the Court, because those parts are joined
by six of the ten judges participating in this decision. By
contrast, none of the other nine judges participating in this
decision have joined Parts III B and C of that opinion.
2
The nature and extent of the protection afforded the property
interest in a public education, the due process requirements
decision depriving the student of that property interest be made by
someone who does not have a pecuniary interest in having the
student suspended or expelled. To take an extreme example,
regardless of any other process afforded, due process would be
violated if a principal took a bribe from the complaining student’s
parents in return for suspending or expelling the alleged
wrongdoer. But it is an entirely different matter to suggest, as
Part III B of the opinion does, that a school official’s potential
liability to the complaining student if that official fails to take
legally required action amounts to a “financial incentive” which
renders that official “impermissibly biased” and requires recusal
from deciding what action, if any, is required in the
attendant to its loss, depends upon the severity of the loss. In
Goss v. Lopez,
419 U.S. 565,
95 S. Ct. 729 (1975), the Supreme
Court held that, with any suspension of up to ten days, all the Due
Process Clause requires is for the student to “be given oral or
written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an
opportunity to present his side of the
story.” 419 U.S. at 581, 95
S. Ct. at 740; accord Arnold v. Board of Educ.,
880 F.2d 305, 318
(11th Cir. 1989). The Supreme Court said in Goss that “[i]n the
great majority of cases the disciplinarian may informally discuss
the alleged misconduct with the student minutes after it has
occurred,” and “[w]e hold only that, in being given an opportunity
to explain his version of the facts at this discussion, the student
first be told what he is accused of doing and what the basis of the
accusation
is.” 419 U.S. at 582, 95 S. Ct. at 740. The Court has
since explained that all Goss requires before a suspension is an
“informal give and take” in order to provide the student “the
opportunity to characterize his conduct and put it in what he deems
the proper context.” Board of Curators v. Horowitz,
435 U.S. 78,
86,
98 S. Ct. 948, 953 (1978) (quoting
Goss, 419 U.S. at 584, 95 S.
Ct. at 741); accord, e.g., C.B. v. Driscoll,
82 F.3d 383, 386 (11th
Cir. 1996) (“The dictates of Goss are clear and extremely
limited.”). These “rudimentary precautions,” to use the
description from Goss itself, 419 U.S. at
581, 95 S. Ct. at 740,
are a far cry from a due process tribunal hearing attendant to some
property interest deprivations.
2
circumstances. As authority for that novel proposition, the opinion
cites only Gibson v. Berryhill,
411 U.S. 564, 579,
93 S. Ct. 1689,
1698 (1973). The Gibson decision provides no support for the
proposition, because it does not hold, or even imply, that an
official’s potential liability for failing to properly exercise
decisionmaking authority constitutes a “financial incentive” which
renders the official “impermissibly biased.”
Gibson involved a state optometry board composed exclusively
of private practitioners who were in competition with corporate
employee optometrists. Those board members had a substantial
pecuniary interest in excluding from the market corporate employee
optometrists, who accounted for nearly half of all the practicing
optometrists in the state. The Supreme Court affirmed the district
court’s holding that the private practitioner’s pecuniary interest
in eliminating competition disqualified them from deciding whether
the practice of optometry by corporate employees as such
constituted unprofessional conduct justifying license revocation.
See 411 U.S. at 578-79, 93 S. Ct. at 1698. That holding does not
support the proposition that any time an official can be sued for
failing to respond properly to a complaint that official is
disqualified from making a decision about how to respond to the
complaint.
If that suggested proposition were the law of this circuit --
and thankfully it is not -- no school official could ever
discipline a student for any alleged misconduct as a result of
another student’s complaint without violating the due process
3
rights of the disciplined student. The reason such an imposition
of discipline would violate due process is that such an official
would always have a financial incentive, under that view, to
believe the complaint in order to avoid a lawsuit filed by the
complainant. The ramifications of such a rule would extend to
discipline for any type of misconduct, because there is no
principled basis on which a distinction can be drawn between
discipline following a complaint about sexual harassment and that
following a complaint about any other type of misconduct.
Nor is there any principled basis by which such an automatic
disqualification rule could be confined to school settings. It
would also apply outside the Title IX context; for example, in jail
and prison settings. If one prisoner complains to a jailer or
warden about what some other prisoner has done to him, under Judge
Tjoflat’s view that official will have a financial interest in
avoiding a lawsuit from the complaining prisoner (alleging
deliberate indifference), and such an interest disqualifies the
official from making any disciplinary decision about the complaint.
So, not only would the disqualification rule be automatic, it also
would be universal. No one would be able to decide any
disciplinary matters in schools, in prisons, or in any other
setting within the purview of the Due Process Clause. All federal,
state, or local officials called upon to decide what to do in
response to one person’s complaint about another would have a
financial incentive to avoid a lawsuit, which would disqualify them
4
from making a decision. That cannot be the law, and it is not the
law.
Judge Tjoflat’s response to having these flaws in his
reasoning pointed out is contained in footnote 21 of his opinion,
which will reward close scrutiny. First, that footnote assures us
that we should not worry about the far-reaching ramifications of
the suggestion that potential liability equals disqualifying bias,
because this Court is holding that school officials have no
liability under Title IX for student-student sexual harassment.
Apparently forgotten is the assurance, in Part IV of the opinion,
that “Georgia tort law may indeed provide redress” for the very
same conduct. If a school official’s potential liability for not
acting properly is a disqualifying financial interest, it matters
not whether that potential liability is posed by Title IX or by
state tort law. The opinion does not, and logically cannot, suggest
otherwise. Instead, it adopts a head-in-the-sand approach which
ignores everything but Title IX, as though that were the only
potential source of liability for school officials who are called
upon to decide what to do about student-student sexual harassment
complaints.
With its head comfortably in the sand, the opinion also
ignores entirely the obvious implications of its proposition for
student-student disputes involving allegations of misbehavior other
than sexual harassment. Part of the quotidian business of teachers
and principals is resolving disputes in which one student alleges
another has threatened, hit, stolen from, or otherwise mistreated
5
him or her. Some of those disputes pose potential liability for the
teacher or principal who fails to act. For example, a school
official who fails to take appropriate action to protect a student
from a threatened thrashing at the hands of another student may
have to answer in a state court tort action. Under the reasoning
contained in Part III B of the opinion, that potential liability
would prevent any school official from deciding what to do about
such a complaint, because that official’s potential liability to
the complaining student would amount to a disqualifying financial
bias. A careful reading of the opinion reveals that it fails to
explain why that result would not necessarily follow from its
suggested reasoning.
As to settings outside the school context, footnote 21 of the
opinion offers two responses to this criticism. First, it simply
denies SS “We suggest nothing of the kind” SS that its proposition
about potential liability equaling disqualifying bias would have
any application outside the schoolhouse. That ipse dixit assertion
has as little reasoning behind it as the proposition itself. The
opinion fails to offer any reason why the automatic bias theory it
suggests would not apply in non-school contexts, because there is
no reason. The right to an unbiased decision maker is a rudiment
of due process, which is as applicable outside schools as within
them.
Apparently realizing that the ipse dixit approach will not
shield the naked illogic of its position from view, the opinion
attempts to camoflauge the problem with talk of immunity. “Don’t
6
worry,” we are told, officials in non-school settings have
“immunity from suit” which removes any potential liability for
failing to decide for the complaining party, and any financial
incentive to favor that party disappears along with the potential
liability. The thinnest stripe of the attempted camouflage is the
opinion’s reference to judicial immunity. We are not talking about
judges. We are talking about the myriad of federal, state, and
local non-judicial officials who are regularly called upon to
decide what to do in response to one person’s complaint about
another. Jailers, wardens, and other corrections officials are but
a few examples. These people are not judges. They do not enjoy
judicial immunity.
Even so, the opinion says, there is qualified immunity. There
are three problems with the assertion that the availability of
qualified immunity distinguishes non-school officials from school
officials by removing any threat of lawsuit by a complaining party
dissatisfied with an official’s resolution of a complaint outside
the school setting. First, qualified immunity is not absolute.
Second, qualified immunity does not shield officials from liability
grounded on state law. Third, and most obviously, the doctrine of
qualified immunity is the same for school officials as for non-
school officials. If that doctrine shields non-school officials
from threat of lawsuit sufficiently to remove any disqualifying
financial incentive to decide for a complainant, it does exactly
the same for school officials. Thus, with its talk of qualified
immunity, Part III B of the opinion has succeeded in reaching
7
around and biting itself in the back. If what the plurality
opinion says about the due process implications of qualified
immunity is true, then the opinion has disproven the very
proposition it is seeking to defend.
II.
Part III C of Judge Tjoflat’s opinion attempts to establish
that student-student sexual harassment is such a widespread and
extensive problem that a different holding in this case would
impose massive liability upon school officials and boards. In its
words, agreeing with appellant’s theory of liability would give
rise to “thousands of lawsuits.” Tjoflat Opinion at n.25. The
factual premise of that reasoning is based entirely upon one survey
report. See American Ass’n of Univ. Women Educ. Found., Hostile
Hallways: The AAUW Survey on Sexual Harassment in American Schools
(1993) (hereinafter “AAUW Survey Report”).
The AAUW Survey Report was not the subject of an evidentiary
hearing in the district court, nor has it been examined in a
hearing in any other court insofar as we know. Neither party to
this appeal even mentioned the survey in the briefs; it was
discussed only in one amicus brief. In general, we should be
reluctant to incorporate into our reasoning the results of a survey
that has not been examined critically or tested in a trial or
evidentiary hearing, the time-honored and proven methods our system
of justice uses to determine material facts.
8
Beyond the general problems with using surveys in judicial
decision making, there are specific reasons why employment of this
particular survey for the purpose Judge Tjoflat uses it in Part III
C of his opinion is ill-advised. That purpose, of course, is to
show student-student sexual harassment is so rampant that if a
cause of action existed for it the resulting flood of litigation
would inundate our public school systems, or at least school
officials would have a basis for fearing that result SS the basis
being the survey.
The first reason we ought to be especially cautious about such
a use of this particular survey is that its purported findings are,
in the words of the sponsors of the survey: “startling,” and for
some “the results will be surprising and shocking.”
Id. at 2. The
reason for such descriptions is that it is difficult to believe
that 65 percent of all eighth through eleventh grade students have
been sexually harassed by other students, and that half of all
female and male students in those grades are self-professed sexual
harassers. We ought to be reluctant to accept as fact, or assume
that school officials would accept as fact, such “surprising and
shocking” statistics based upon a single survey of only a tiny
fraction of one percent of the total number of students in four
grades.
Even a cursory look at the survey report gives more reason to
be dubious about the opinion’s use of the report. The survey asked
students how often “[d]uring your whole school life” has anyone
“when you did not want them to” done any of the following things,
9
and it then provided a list of behavior the survey defined as
sexual harassment. See
id. at 5. Some behavior on that list
clearly constitutes sexually harassing behavior of the most serious
type. But included in the list is other behavior that is less
serious and far less likely to lead to complaints and litigation,
which is what Judge Tjoflat uses the survey to predict (or posits
that school boards will use it to predict). For example, included
in the survey’s definitional list of sexual harassment was any
instance in which another student: “Made sexual comments, jokes,
gestures, or looks;” or “[s]pread sexual rumors about you;” or
“[s]aid you were gay or lesbian.”
Id. at 5. Remember that a
single unwelcome instance of such activity, during the student’s
entire school life, renders that student a victim of sexual
harassment for purposes of the survey.
A student who has ever been looked at by another student in an
unwelcome way perceived to be sexual is defined by the survey to be
a sexual harassment victim. Any student ever called gay or lesbian
is also a sexual harassment victim in the survey’s view. Any time
unwelcome rumors are spread about a student having any type of
sexual activity (presumably including kissing) with another
student, those students are sexual harassment victims as the survey
defines it. To take one final example of how the total incidence
of “sexual harassment” reported overstates legally actionable
incidents of sexual harassment, consider that the survey definition
includes incidents in which someone “[f]lashed or ‘mooned’ you.”
Id. At 5. Suppose that a student at a school function (which the
10
survey defines to include school sporting events and field trips)
“moons” all the students in attendance, or all those from a rival
school. A single episode of that misbehavior SS which is not nice
and certainly should not occur, but has been known to happen SS
could make sexual harassment victims, as the survey defines the
term, out of scores or even hundreds of students. Yet, such an
incident is extremely unlikely to result in litigation against the
school.
It is also worthy of note that the survey asked students
whether the behavior it defined as sexual harassment had happened
to them “[d]uring your whole school life.”
Id. at 5. Therefore,
the 65 percent figure reflects those who have experienced that
behavior at any time during any school year of their life. It does
not purport to be annual data.
Finally, Part III C of the opinion fails to point out that the
survey also asked the students if any of them who had been sexually
harassed, as that term was defined in the survey, had told a
teacher about the experience. Only 7 percent of the sixty-five
percent had. See AAUW Survey Report at 14. Whatever the reasons
for not reporting such behavior to a teacher, the failure to do so
in all but the rarest instances has obvious implications for the
existence of causes of action against schools or the likelihood of
actual litigation.
The opinion attempts to deflect criticism about misuse of the
survey by suggesting that while the opinion’s author does not
necessarily think that the survey is a valid indicator of how much
11
student-student sexual harassment occurs, school boards might think
that the survey is and reject federal funding as a result of it.
With all due respect, there is no reason to believe that school
boards would be less likely than federal judges to see the flaws in
such an interpretation of the survey. School boards know more
about what is going on in their schools than we do, and they can be
expected to critically examine any survey before using it as a
basis for turning down federal funding for their schools. Rather
than hiding behind speculation about how school board officials
might interpret the survey, the opinion ought to face up to the
flaws in its suggested use of the survey.
Upon its release, the sponsors of the survey stated that they
were “confident that the results of this survey will become a focal
point on the agendas of policy makers, educators, and others
concerned with the education of America’s children.”
Id. at 21.
Their confidence about how the survey would be used might be
undermined by Part III C of Judge Tjoflat’s opinion. More
importantly, we are not policymakers. We do not have agendas. We
ought to leave this survey to those who do.
III.
The parts of Judge Tjoflat’s opinion that neither I nor any
other member of the Court except its author joins, Parts III B and
C, are not necessary to the opinion’s essential reasoning or to the
holding of this case. Neither the language of Title IX nor its
legislative history indicates that Congress intended to saddle
12
school boards and officials with liability for student-student
sexual harassment, and school boards had no notice that such
liability would result from accepting Title IX funds. For those
reasons, I do join the holding of the Court and Parts I, II, III A,
and IV of Judge Tjoflat’s opinion.
13
