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Published in Print: July 8, 1998, as Dissent: Court Standard Is 'Exceedingly High'

Dissent: Court Standard Is 'Exceedingly High'

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Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, delivered a dissenting opinion:

... 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 8th 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 [school district]. Moreover, it is undisputed that the activity was subsidized, in part, with federal moneys.

Justice John Paul Stevens

"It's amazing in a nonprofit environment how money still talks," said James W. Knapp, the finance director for the 45,000-student district.

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. That holding is at odds with settled principles of agency law, 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. 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. ...

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 "refusal to take action,'' or "deliberate indifference'' toward the harassment.

Presumably, few Title IX plaintiffs who have been victims of intentional discrimination will be able to recover damages under this exceedingly high standard. ...

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.

Vol. 17, Issue 42, Page 31

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