In Davis v. Monroe County Bd. of Education (1999) 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839, plaintiff brought an action for money damages under Title IX of the Education Amendments of 1972 (20 U.S.C., §1681 et seq.), alleging that her fifth-grade daughter had been the victim of sexual harassment by a male student in her class. The trial court dismissed the complaint on the ground that "student-on-student" harassment provides no basis for a private cause of action under Title IX. The Eleventh Circuit Court of Appeals, en banc, affirmed. Held, reversed.

            (a) Recipients of federal funding who are deliberately indifferent to known acts of student-on-student sexual harassment may be liable for damages under Title IX.

            (1) Title IX provides that no person in the United States may, 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)). (119 S.Ct. 1669, 143 L.Ed.2d 851.) A funding recipient who is deliberately indifferent to known acts of harassment by one student against another may intentionally violate this provision. (119 S.Ct. 1671, 143 L.Ed.2d 854.)

            (2) The following sources provided recipients of federal funding with adequate notice that they could be liable for damages under Title IX: the wording of 20 U.S.C., §1681(a), which extends liability to recipients who "subject" persons to discrimination; the Court's decision in Gebser v. Lago Vista Independent School Dist. (1998) 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277, 8 Summary (9th), Constitutional Law, Supp., §729, which established liability for deliberate indifference to known acts of teacher-student harassment; and the common law, which has imposed liability on schools for failure to protect students from the tortious acts of third parties. (119 S.Ct. 1671, 1672, 143 L.Ed.2d 854, 855.)

            (b) A funding recipient's liability is limited by several factors.

            (1) The recipient is liable for its own misconduct, not that of the harasser. (119 S.Ct. 1670, 143 L.Ed.2d 852.) If a funding recipient does not engage in harassment directly, it can be liable for damages only if its deliberate indifference "subjects" its students to harassment. The recipient need not have an agency relationship with the harasser to be held responsible, but it must have some control over the alleged harassment and the authority to take remedial action. (119 S.Ct. 1672, 143 L.Ed.2d 855.)

            (2) Funding recipients are deemed "deliberately indifferent" to acts of student-on-student harassment only where the recipient's response to the alleged harassment is "clearly unreasonable in light of the known circumstances." (119 S.Ct. 1674, 143 L.Ed.2d 857.)

            (3) The harassment must be "so severe, pervasive, and objectively offensive" that it deprives the victim of access to the educational opportunities and benefits that the school provides. It is not necessary to show that the harassment has physically excluded the victim from an educational opportunity or benefit, but the victim must have been "effectively denied equal access." (119 S.Ct. 1675, 143 L.Ed.2d 858.)

            (4) Whether gender-oriented conduct rises to the level of actionable harassment depends on the surrounding circumstances. Damages are not available for simple acts of teasing or name-calling, even when these comments target differences in gender. Private damages actions are limited to cases having "a systemic effect on educational programs or activities." (119 S.Ct. 1676, 143 L.Ed.2d 860.)

            (c) It was error to dismiss the complaint here. Plaintiff alleges that her daughter was the victim of repeated acts of sexual harassment, both verbal and physical, over a 5-month period. The harassment alleged could be considered severe, pervasive, and objectively offensive; the perpetrator ultimately pleaded guilty to criminal sexual misconduct. Moreover, the complaint alleges that multiple victims sought to speak with the school principal about the harassment, and that the harassment had a concrete, negative effect on plaintiff's daughter's ability to receive an education. Finally, the complaint suggests that plaintiff may be able to show actual knowledge and deliberate indifference on defendant's part, because defendant made no effort to investigate or end the harassment. (119 S.Ct. 1676, 143 L.Ed.2d 860, 861.)

            Four justices dissented, concerned that the decision will create federal control over issues of school discipline (119 S.Ct. 1683, 143 L.Ed.2d 870) and impose serious financial burdens on local school districts (119 S.Ct. 1689, 143 L.Ed.2d 877).

Witkin References

On federal civil rights legislation generally, see 8 Summary (9th), Constitutional Law, §704 et seq.

On actions under Title IX, see 8 Summary (9th), Constitutional Law, §729.