Schools Not Liable Unless 'Deliberately Indifferent'

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Following are excerpts from the U.S. Supreme Court's majority and dissenting opinions in Gebser v. Lago Vista Independent School District.

Justice Sandra Day O'Connor delivered the opinion of the court:

Justice Sandra Day O'Connor

"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 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 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. ...

Title IX provides in pertinent part that, "[n]o 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.'' The express statutory means of enforcement is administrative: The statute directs federal agencies who 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 ultimately the termination of federal funding.

Franklin v. Gwinnett County Public Schools (1992) ... 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. ...

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 [teacher Frank] Waldrop's conduct. First, relying on a 1997 "Policy Guidance'' issued by the [U.S.] 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.

That rule is an expression of respondeat superior liability, i.e., vicarious or imputed liability, 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. Both standards would allow a damages recovery in a broader range of situations than the rule adopted by the Court of Appeals, which hinges on actual knowledge by a school official with authority to end the harassment. ...

[W]e 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.

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. ...

Title IX's express means of enforcement--by administrative agencies--operates on an assumption of actual notice to officials of the funding recipient. ...

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.

Moreover, an award of damages in a particular case might well exceed a recipient's level of federal funding. (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.

Because the express remedial scheme under Title IX is predicated upon notice to an appropriate person and an opportunity to rectify any violation, 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'' ... 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 damages not for its own official decision but instead for its employees' independent actions. ...

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 USC Section 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 deliberate indifference. We therefore affirm the judgment of the Court of Appeals.

Vol. 17, Issue 42, Page 31

Published in Print: July 8, 1998, as Schools Not Liable Unless 'Deliberately Indifferent'
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