Davis v. Monroe County Board of Education - Oral Argument

Argument of Verna L. Williams

Chief Justice Rehnquist: We'll hear argument first this morning in No. 97-843, Aurelia Davis v. the Monroe County Board of Education.

Ms. Williams.

Mr. Williams: Mr. Chief Justice, and may it please the Court:

At issue in this case is whether title IX's broad prohibition against sex discrimination requires schools to remedy and address student-to-student sexual harassment.

The Eleventh Circuit has decided that title IX imposes no obligations on schools to remedy this type of discrimination, no matter how severe or pervasive the harassment, no matter how cognizant school officials are... are of it, no matter how capable officials were of remedying the harassment.

Under this blanket rule, schools simply cannot be held accountable under title IX either in court or in the administrative enforcement context for... for refusing to address this discrimination.

This result cannot be squared with title IX and with this Court's interpretations of the statute.

Justice O'Connor: May I ask, Ms. Williams, how you would propose to cabin this cause of action were we to agree with you?

I'm sure that school children nationwide tease each other, and little boys tease little girls, and so forth throughout their years in school.

And is every one of those incidents going to lead to some kind of a lawsuit?

Mr. Williams: No, Your Honor.

The legal framework that has developed in this area provides standards for determining what constitutes sexual harassment and what isn't sexual harassment.

Justice O'Connor: What standards would you think would govern to cabin this kind of a cause of action?

Mr. Williams: First, I would recommend looking at the title VII standards.

The Court said in Gebser that title VII standards inform whether sex... sexual harassment is sex discrimination under title IX.

And under those standards, a particular instance isn't sexual harassment unless it is severe, it's pervasive, unless it is sufficiently... unless it is objectively offensive to a reasonable person, unless it is offensive to the person who has experienced the sexual harassment.

Justice Scalia: Gee, but little girls always tease little boys and little boys always tease little girls.

That's pervasive.

Mr. Williams: It's pervasive, but it is not severe.

Justice Scalia: In my experience, it's... it's severe.

Mr. Williams: But it doesn't always...

Justice Scalia: Are you going to apply a reasonable... a reasonable teenager standard?

Is that... is that the criteria?

Mr. Williams: Well, the Department of Education has applied the title VII standards and given consideration as to how they would apply to the education context.

So, they do recommend that school officials use age-appropriate measures.

But the important...

Justice Breyer: The concern... the concern is I think that if you simply take the same standards of title VII, i.e., anything that would be sexual harassment in the work place, when done by a co-worker or a supervisor to a subordinate or a co-worker, that which is sexual harassment there is also sexual harassment for which the school district is liable when a 7-year-old does it to a 6-year-old or a 13-year-old to a 12-year-old.

The concern is, as you've said, you take the same standards.

You would remove what is a pervasive problem in the schools from the hands of educators and psychologists and give that problem to lawyers and judges.

Now, I don't think the latter is the right group of people to solve it.

Perhaps it is, perhaps it isn't.

But I want to bring out into the open what I think is the problem or a problem, and I want to know how you... anything you could say that would reassure me or others that... how... that this would... what I've just said may not be the case.

Mr. Williams: We understand the concern and we think that, first of all, the title VII standards wouldn't apply wholesale in the education context.

They would have to... they would inform the analysis of sexual harassment in the first instance.

And the second thing is that title IX doesn't require schools to be successful in addressing student-to-student sexual harassment.

In other words, to avoid being held out of compliance with title IX, the school would need to take reasonable steps to remedy and address the sexual harassment.

Justice Kennedy: I think then that every school district in the Nation should adopt guidelines and codes, as we've suggested for employers.

Do you think there was a suggestion in the congressional debates and in the text of this statute that there would be Federal standards for school behavior in every classroom in this country?

Mr. Williams: We're not suggesting that there are Federal standards for school behavior.

We are suggesting...

Justice Breyer: I thought this was a Federal statute we're talking about.

Mr. Williams: Well, we are talking about a Federal statute, but the Federal statute imposes the obligation on educational institutions to ensure that no person is excluded from participation in, denied the benefits of, or subjected to discrimination under the education program or activity.

Justice Kennedy: Now, let's... let's... let's be very careful here.

If you're going to have standards, they're Federal standards, are they not?

Mr. Williams: Yes.

Chief Justice Rehnquist: Thank you.

Justice Scalia: Do you really think it... it... it imposes an obligation on these educational institutions to prevent anyone being denied the benefits of or excluded from participation in, that's what it requires every school district to do?

Mr. Williams: The... the... the prohibition is broad.

Justice Scalia: Well, what if... what if parents, benighted as they may be, decide that they don't want their daughter to study science because they think girls shouldn't study science?

Title IX makes it the responsibility of the school district to prevent that?

Mr. Williams: The parents wouldn't be persons that are under control of the institution.

And so, in that instance, title IX wouldn't have... wouldn't require schools to step in to... to deal with that situation.

Justice Scalia: I... I suppose the... the parents are under the control of the institution to the extent that the institution decides what course ultimately the student will take.

And if the institution knows that the parent is... is depriving this child from taking science, because the parents feel that the girl shouldn't have science, surely the institution can prevent that.

Mr. Williams: Title IX doesn't impose an obligation on the school to act in that instance any more than title VII would require an institution to step in if a husband didn't want his wife to work in a nontraditional occupation in the public employment sector.

Justice Scalia: So, you think the language cannot be read literally, that it... it in fact does not mean that no one... when it says no one shall be deprived of the benefits of or subjected to discrimination under, it doesn't mean that it's the responsibility of the school to assure absolutely that that will be the result.

Mr. Williams: It would be difficult to say that absolutely everything, and certainly...

Justice Kennedy: Yes.

Mr. Williams: in the instance that...

Justice Scalia: So, it's just a question of where we draw the line.

It's just a question of where we draw the line.

You acknowledge that they're not responsible for eliminating the effects of the parental discrimination or the parental desires, and the question before us is whether they are responsible for eliminating the effects of the... of the children's desires.

And I don't... I don't know why it's absolutely clear that... that there's a line between those two.

Mr. Williams: Well, in the student-to-student sexual harassment context, the kind of conduct that would be actionable or the kind of conduct under which a school would be... be found out of compliance is the type of conduct that interferes with the student's ability to gain an education and it... and otherwise to fulfill the other...

Justice Stevens: So is the parents'...

Mr. Williams: requirements of the...

Justice Scalia: So is the parents' determination that... that the child shouldn't take science.

Mr. Williams: But the parent is not someone that the school has ultimate control over.

Justice Scalia: The... the parent... the school has control over what courses the child takes.

Mr. Williams: Well, we would submit that the... under the hypothetical under the situation that you have articulated, that title IX would not impose an obligation on schools.

And moreover, that's...

Justice Kennedy: Well, in... in the case of sexual harassment, I take it the school has the duty to call the parent in and... and tell the parent to control the child.

Chief Justice Rehnquist: Correct?

Mr. Williams: Yes, that would be part of...

Justice Kennedy: All right.

Why in Justice Scalia's hypothetical doesn't the school have the duty to call the parent in to say not to impose racial... or sexual gender stereotypes on the... on the child?

I don't think you're answering the question.

Mr. Williams: In the... getting back to my... my... I would like to modify my answer to your question.

Title IX doesn't require the schools to take any specific steps.

It requires the schools to ensure that students and other persons are not subjected to discrimination under the program or activity.

And under this particular hypothetical, again the parents are not persons that are within the control of the institution, and so, as I said, under...

Justice O'Connor: Well, neither is the student in every situation.

Is it possible that title IX liability requires that the action of harassment be done by an agent of the school district?

Mr. Williams: No.

No, Your Honor.

Justice O'Connor: In Gebser, of course, it was a teacher and the teacher was an agent of the district.

So, certainly it's possible then that liability would be focused on those who are agents of the district.

Liability of the district would depend upon actions of an agent.

Mr. Williams: We submit that Gebser rejected holdings... holding schools liable for the independent actions of teachers, and in that case the Court was asked to adopt a theory of vicarious liability that would be dependent upon the agents...

Justice Breyer: No.

Justice O'Connor: It... it required the intentional action of the school district, but it also happened to involve action by an agent.

And so I'm asking you whether both are required, the knowledge and... and... and neglect of the school district to control behavior that it knows was improper by an agent, or can it be anyone?

Could it be a stranger coming in and doing this or a parent who frequently comes to school and says insulting things to other children?

Would the school district be liable for that?

Mr. Williams: If a school district... if school officials, the appropriate school officials, had actual notice of that type of misconduct and they responded to it with deliberate indifference, they would be accountable.

They would be held accountable under title IX.

I think that the... the Seventh Circuit's opinion in Doe v. University of Illinois does provide a cabining concept that you were asking about, Your Honor, in that the liability would... would attach to those situations that are happening in school or in school activities or school sponsored activities.

And that would help to, I think, address in part Justice Scalia's question.

But the important thing to remember is that the statute does require that institutions not subject persons to discrimination, and the Court's decision in Gebser shows that the appropriate analysis in large part is an examination of how the school responded to the discrimination when it was made aware of it.

Justice O'Connor: That's right, but it was carried out by an agent of the school, to wit, a teacher.

Mr. Williams: Yes, it was.

That is true.

But the... the Court's analysis did not focus on the harasser's relationship to the institution to make the ultimate determination of whether damages liability would attach.

Justice Ginsburg: Ms. Williams, I thought your position was not that there's responsibility for what the child does, the way there might be for a teacher, but that there were repeated notice.

It was the school's nonresponse.

It was the school's conduct and not the fifth grade harasser's conduct...

Mr. Williams: Yes.

Yes, that's exactly right, Your Honor.

Justice Ginsburg: that renders the... the district liable.

Justice Breyer: But...

Mr. Williams: That in response to the... the underlying discriminatory conduct of the student.

Justice Scalia: But that response is blameworthy only if the school has an obligation to act.

If it has no obligation to act, its failure to respond shouldn't subject it to liability.

Why does it have an obligation to act with respect to two little kids teasing each other when it does not with respect to a parent who... who decides the child shall take particular courses?

The statute requires discrimination under... under... a program.

It prohibits discrimination under any education program.

I always thought under the program meant that the program itself discriminated...

Mr. Williams: Well...

Justice Scalia: not that the program stopped, you know, contractors or the students themselves or the parents of the students from discriminating.

I wouldn't consider that discrimination under the program.

Mr. Williams: Well, we submit that that would be, the... in the peer situation, that that is discrimination under the... the program or activity.

Justice Scalia: Any failure of the program to prevent discrimination which it has the power to prevent constitutes discrimination under the program.

Mr. Williams: Any discrimination in the sexual harassment context, if the conduct rises to the level of discriminatory sexual harassment, the... the title IX imposes an obligation on schools to address that.

Justice Scalia: Whether... whether its their agents that are doing it or not, whatever discrimination by the public at large the school can prevent, it must prevent.

Mr. Williams: If... remember that in... in order to... under the Gebser standard, what limits the liability is the situation in which the school has actual notice of it and responds with it to deliberate indifference.

Justice O'Connor: I understand.

Mr. Williams: So, the statute...

Justice Scalia: But if it knows about it, it must prevent it.

Mr. Williams: If it knows about it, it must take reasonable steps to address and remedy.

And as I emphasized before, the statute doesn't require schools to address it perfectly.

It merely requires them to take reasonable steps in order to...

Justice Scalia: And you think that that is conveyed by the language discrimination under the program.

Mr. Williams: Yes.

Yes, we...

Justice Kennedy: The students themselves are not committing a legal wrong, are they, in... in the usual sexual harassment case?

There was a battery here, but in... in most cases that you have in mind, the students aren't committing a legal wrong, are they?

Mr. Williams: They are part of the legal wrong.

Justice Kennedy: They are not committing a legal wrong under Federal law.

They are not... they have no liability, do they?

Mr. Williams: I'm sorry.

I'm not understanding your question.

They don't have any legal liability.

In other words, we wouldn't file an...

Justice Kennedy: Johnny harasses Mary.

That is not a legal wrong on the part of Johnny.

Mr. Williams: Right.

But the schools...

Justice Kennedy: All right.

It's... it's an odd, unusual, not unknown scheme that we impute liability to the principal for an act that is not wrong when done by the actor.

Mr. Williams: Well, the acts... if the act... if Johnny harasses Susie and John's action is based on sex and it's severe and it's pervasive and it is offensive to Mary and it's offensive to a reasonable person looking at the situation and if it interferes with Mary's ability to get an education, he has engaged in sexual harassment that violates the law.

And if the school fails to respond to that, upon getting notice by Mary, then the school has violated title IX as well.

And in fact, under the Gebser...

Justice Kennedy: But he has no... he has no legal liability under the statute.

Mr. Williams: The statute doesn't allow a plaintiff to go after that person, but certainly the cases that... that this Court has decided counsel that we look at the underlying discrimination and look at the... the actions of the person who has... is alleged to have done the harassment.

Justice Scalia: And that... that applies to the parents as well.

Mr. Williams: If in a...

Justice Scalia: I mean, if the parents don't want their daughters to take science or don't their... their sons to take ballet, the... the... that's okay.

But the school which has the power to determine whether the children will take ballet or science can, in effect, stop the parents from that... from that... I don't know... wicked action or whatever the action is considered.

Mr. Williams: I wouldn't say in every circumstance.

I think the way... in this hypothetical I would say the answer is no, but if parents, on the other hand, were standing outside of the doors of the computer lab saying that no female students shall enter and they were doing this in... in plain view of school officials, then the school might be liable for that because they would be denying female students the ability to benefit from the education program or activity and, moreover, subjecting them to discrimination.

So, it is no answer... you're right... for me to say the parents... the actions of parents can never be the basis of liability under title IX, but there are circumstances in which they can be.

Justice Souter: Let me ask you a definitional question.

Let's assume we get to the point of saying that student-to-student behavior can be a predicate for the school's obligation here.

How does the... how does the school define in its guidelines, be they formal or informal, the... the concept of the harassment that amounts to discrimination, as you put it, as distinguished simply from... from teasing which may be pervasive.

I mean, in the first grade, boys tease girls because they are girls and vice versa.

I presume that all of that is not supposed to be subject to a... in effect, an enforceable Federal standard.

But how would... A, am I correct in assuming that on your view it would not be, and...

Mr. Williams: Yes.

Justice Souter: B, if I am correct, could you give me an idea of how you would state the definitional line that divides one from the other?

Mr. Williams: A, you are correct.

We don't think that teasing, simple teasing, between students would constitute sexual harassment.

B...

Justice Souter: But it... it is on the basis of sex, though.

Mr. Williams: It's on the basis of sex but...

Justice Breyer: I mean, it's because they're girls and because they're boys.

Mr. Williams: it's not severe.

It's not pervasive.

It's not...

Justice Souter: Well, but it can be.

I mean, you know, little gangs form in schools and it can be very pervasive and very distressing to kids.

And it's done on a sexual basis.

It's done because the... the receivers are girls or boys and the givers are vice... boys or... or girls.

So... so, it can be pervasive.

Mr. Williams: It can be.

Justice Souter: And it certainly is on the basis of sex.

But I presume that still you would draw a line.

Mr. Williams: It wouldn't always be sexual harassment, and indeed there are many policies...

Justice Scalia: Right, but... and how...

Mr. Williams: and procedures at schools...

Justice Souter: how... what's the... how do you state the line because your time is getting short.

Mr. Williams: Yes, it is.

Well, we would say, as a starting point, the legal framework that has developed can provide a way of... of analyzing and articulating what constitutes sexual harassment.

Justice O'Connor: But that's part of the problem because under the title VII standards in the work place, I'm sure the kind of behavior that occurs at schools between children would be actionable.

So, how do we apply it in the student context?

Mr. Williams: The Department of Education has used those standards and has said, take a look... use them in an age-appropriate way.

And... and they have articulated, for example, severe to... in determining whether behavior is severe, schools should look at the... the number of instances, where they occurred, who's doing the harassing.

In that context, there may be a difference in the analysis based on whether a teacher is doing the harassing or whether it's another student doing the harassing.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Ms. Williams.

Ms. Underwood, we'll hear from you.

Mr. Underwood: Mr. Chief Justice, and may it please the Court:

When the principal of a school learns that a fifth grade girl is being sexually harassed by a classmate so severely that she can't learn and the principal responds with deliberate indifference, the student is subjected to discrimination on the basis of sex under the school's educational program.

And if the school receives financial assistance, Federal financial assistance, it may be liable in damages and equitable relief may be available even where damages are not.

I'd like to address the cabining principle question that has been on the table.

It seems to me the... the important thing to...

Justice Stevens: Excuse me.

Justice Scalia: The what question?

Mr. Underwood: The question of cabining principles.

Justice Ginsburg: Oh, cabining principle.

Mr. Underwood: Cabining principles.

Unless the behavior in question is so severe as to exclude, deny benefits, educational benefits, or discriminate under the education program, ordinary teasing would not rise to the level of an actionable wrong under the program.

Justice Souter: But I take it if... if it is pervasive, you know, if the kids gang up and the one... the... the object of the teasing really is... is... is left incapable of getting the benefit of the education, I take it your answer is... implicit in your answer is there's... there's no principle line between harassment and what we call teasing by... by primary grade children.

Mr. Underwood: Well, when it's sufficiently severe as to deprive somebody of the ability to get an education and it's done on the basis of sex and the school fails to respond in a reasonable fashion, it seems to me that's...

Justice Scalia: Excuse me.

Why... why does it have to deprive someone of the ability to get an education?

That's not what the statute says.

That's a separate basis for violation; that is, be denied the benefits of.

All it says is, be subjected to discrimination under.

Why... why... I don't know why you insist that it be so severe that the person can't even learn.

Mr. Underwood: I think the key here is that ordinarily there... there will be deference to the reasonable judgment of school officials.

Justice Breyer: This is true... I can't believe that you're... I mean, I... I doubt... you seem to be saying that if... if X is sexual harassment when a teacher does it to a student, it is sexual harassment when a student does it to a student, when an employer does it to an employee, and the concern... I'll take that as a given.

Maybe you'll deny that.

I hope... maybe you should.

But... but... but if that's the given, what's the concern I think is that whereas one might have no hesitance about insisting in the work place that if they don't shape up, they can be sued, at a school there are many, many incidents where the proper response seems to be a kind of discussion, mediation, getting together with a family, bringing in psychologists, all kinds of things that don't seem appropriate in the work place.

And I guess my concern anyway is... is there some way for the law to be sensitive to that other than opening up a can of worms so that when, as happened, in school X which had a group of girls that were bigger than the boys and they used to beat them up after class, all right, the way the school responds is not with lawsuits?

The way the school responds is through discussion and mediation and so forth, all kinds of ways of response.

What's worrying is the gearing up of the great legal mechanism to supersede that.

Mr. Underwood: But there's no reason why those discussions, counseling sessions, training, conciliation wouldn't be precisely the sort of response that would avoid deliberate indifference and would avoid liability.

That is to say, the appropriate response in the school setting could be very different, would be very different from...

Justice O'Connor: Well, but if it continues again, there's another incidence of it, it fails, then there you go.

You're marching off to court to resolve these issues.

Mr. Underwood: There's no... there's no requirement that a school guarantee that this not happen.

The rule is that a school... for a school to subject a student to discrimination isn't the same thing as for this behavior to happen.

Justice Souter: Well, that's very true, but I think our concern is... is a slightly different concern, and that is, if there is, as... as... as seems to be developing, no principle line between sexual harassment at the... at the... in effect, at the high end of the scale in high school and... and teasing in the first grade, then in every case in which there is pervasive teasing, which we all know goes on, there is a potential Federal case here whenever the parents are dissatisfied with the actions, which you quite rightly describe any reasonable school should take.

And I think the concern is that there is no way really in principle to draw a line between every act of teasing and... and a subject of Federal litigation.

Mr. Underwood: Well, I think the principle where to draw the line is in recognizing that the appropriate response of the school is different from the appropriate response of an employer...

Justice Souter: Well, that goes to the... that goes to the school's response when it gets into court.

Mr. Underwood: No, it doesn't.

Justice Souter: But it still remains the case that the school is going to be subject to... to a Federal court action, and it is going to be Federal guidelines which will be implicated by the claim for every first grade pervasive teasing incident.

That's the concern.

Mr. Underwood: Well, of course, it's always possible to bring a lawsuit, but the cases that have developed so far and presumably, should this Court adopt this rule, the courts could quickly establish what would be a basis for summary judgment, that is, what sort of that... that it would only be a failure of... of the... that rises to the level of deliberate indifference that would be a basis for...

Justice O'Connor: Well, is it possible that under title IX the harasser must be an agent of the school district and the district must have actual knowledge and act with deliberate indifference?

Is that a possible interpretation of that statute?

Mr. Underwood: I don't think it's... it's true to the purpose of the statute.

Title IX, like title VI before it, was designed to provide students with equal access on the basis of sex in the one case and race on the other to an education.

Title VI, after all, was concerned, among other things, with the racial hostility of students to each other in newly integrated schools, as well as the racial hostility of teachers.

So, when the... when a gang prevents a student from essentially participating in the school program on the basis of race or on the basis of sex, that's right at the heart of what title IX means.

Justice Scalia: You... you keep saying that.

I don't know why you can say that.

If... if you are correct about what title IX provides, you don't have to... it doesn't have to be so severe as to deny the person the benefits of the program.

Mr. Underwood: The more severe it is, the clearer it is that the school has to respond.

Justice Scalia: I suppose that's right, but... but...

I agree with Justice Scalia.

all it has to be is discrimination on the basis of sex which the school is aware of.

Mr. Underwood: And fails to respond appropriately to.

Justice Kennedy: And fails to respond to.

Mr. Underwood: And ordinarily... as amici for... for the schools here point out, ordinarily schools do respond.

That's the... that's the other cabining principle here.

Presumably it would be the unusual case where a school was in fact deliberately indifferent, and you would have ordinarily to make that out, egregious behavior and no response or... or...

Justice Kennedy: But the point... but the point is you do not have to show, under the statute, as Justice Scalia suggests and as I understand it, that the students cannot learn as well.

Suppose the student comes home in tears... most students do one... one or more times... and decides that what that student will do is to really study hard and to excel.

Is there discrimination there?

Mr. Underwood: It depends on whether the school has failed to respond reasonably or not.

You don't have an answer to the question on the basis of the student's action.

It is, as I think Gebser said, the school's response that's in question here, and...

Justice Ginsburg: But not... Ms. Underwood, I think the point is are you distinguishing between the student who can't learn she's so upset or the one who says, this is horrible.

I'm being exposed to this horrible thing every day, but I'm going stand up against it.

The same thing that came up in Harris against Forklift.

Mr. Underwood: No.

I don't... I don't... I'm not suggesting that there's only discrimination if the student is demolished, but I am suggesting that the student's reaction is relevant to the appropriate response on the part of the school, and that that's where the... the limitation comes in.

I'd like to point out that it's not unusual in the law, or at least it's not unheard of, in discrimination law for the entity to be liable for an act when the... when the first line actor is not.

Under title VII, it may well be that the employer is liable but the mid-level supervisor who's doing the discrimination... it's not clear whether that supervisor could also be liable under title VII or not.

There are simply different questions at stake when you're asking whether the individual is liable and whether the institution is liable.

One of the reasons the individual is not liable here is that the individual... there are many reasons, but one of them is that the individual is a child and the idea of liability on the part of that child brings into question quite different considerations from the liability on the part of the school which has authority over the situation to do something about it and to respond.

The...

Argument of W. Warren Plowden, Jr.

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Plowden, we'll hear from you.

Mr. Plowden: Mr. Chief Justice, and may it please the Court:

The petitioner is asking this Court to create a private claim for damages under title IX by applying adult standards of hostile environment sex harassment to children.

Like other school districts, Monroe County's has the obligation to educate all of the students, all of the children, as they go through various developmental stages from K-5 through 12th grade.

Throughout these years, 45 million children, grades K-12, struggle to sort out the differences between boys and girls, acting out these relationships, flirting, repeating newly learned vulgarities...

Justice Stevens: Mr. Plowden, can I give you a hypothetical that occurred to me as I listened to the dialogue in the last argument?

Mr. Plowden: Certainly, Your Honor.

Justice Stevens: Just let's get away from the sexual harassment scenario for just a moment.

Suppose you had a... a baseball field and the rules of the school said, after school there will be an hour for women... or the female students and an hour for the male students.

And that's the rule.

It's perfectly clear.

That's the rule policy.

But, in fact, the boys decide they want the... the field for 2 hours, and they're just not going to let the girls on.

And they do that over and over and over again, and the athletic director knows about it but does nothing about it.

And he says, well, our rule is it's equal time for both.

Is there a cause of action?

Is that discrimination in violation of the statute?

Mr. Plowden: Your Honor, we draw a bright line here between acts of misconduct of adults on the one hand, as you had in Gebser, and the acts of misconduct of children.

Justice Stevens: Misconduct for the adult in my hypothetical is that the adult did nothing about it when fully informed as to what happened.

Mr. Plowden: Yes, sir, but the underlying predicate for that, presumably the intent to discriminate, is the group of boys that are...

Justice Scalia: Correct.

Mr. Plowden: that are shuffling the girls off...

Justice Stevens: And as a result of their conduct, week after week after week, they have exclusive use of the athletic facility, and that would not, in your view, violate the statute.

Mr. Plowden: If Your Honor please, I...

Justice Stevens: What is your view on my hypothetical?

Mr. Plowden: I still would not agree that that's a violation of title IX...

Justice Scalia: That wouldn't... that would not violate title IX.

Mr. Plowden: for... for which someone could take my client into court and sue them for damages.

No, sir.

Justice Stevens: Well, you've given me two answers.

Is it a violation of title IX?

Mr. Plowden: No, sir.

Justice Scalia: No you state.

Mr. Plowden: No.

Justice Ginsburg: Not even for purposes of injunctive relief to say to the school, you put a teacher on that field to make sure the girls have their equal time.

Mr. Plowden: If Your Honor please, I believe that... that OCR can enforce title IX, as it does every day, against schools with... there's no requirement.

This... this is in Gebser.

OCR can enforce the mandate of... of the requirement even if it doesn't purport to represent a definition of discrimination.

Justice Ginsburg: I don't follow that.

I mean, if it's a violation of the statute, then OCR can enforce it.

If it's not a violation of the statute, then they can't enforce it.

Mr. Plowden: Well, you... if Your Honor please, the opinion for the Court in Gebser says that they can enforce the nondiscrimination mandate even if the requirement they impose does not purport to represent a definition of discrimination.

Justice Souter: No, but they can't enforce anything given your answer to Justice Stevens because there has been no violation.

So, if... if I understand your answer to Justice Stevens, there could never be injunctive action.

Is that correct?

Mr. Plowden: That's correct.

Justice O'Connor: And that would be true even if... if the action of the boy students were to block admission of the girls to a science class, a group of students who said, we're not going to let girls in here.

Out of here.

And the teacher knows that, the principal knows it, and the girls don't get to take a class they want to take.

No... no violation of title IX and no injunctive relief possible at the instance of the Federal officials.

Mr. Plowden: No, Your Honor.

No injunctive relief in Federal court, but parents can get relief by complaining to OCR and going through the express statutory remedy that is set out in title IX.

Justice Souter: How could they get relief if there is no violation of the statute?

Mr. Plowden: OCR frequently, many times, comes down, investigates, finds a potential violation, and then enters into negotiations with...

Justice Scalia: Oh, a raised eyebrow.

You mean you... you can... you can muscle them.

Even though it's not really a violation, they... they will...

Mr. Plowden: That's...

Justice Scalia: snap to attention if... well...

Mr. Plowden: Your Honor, that's exactly...

Justice Scalia: You don't want us to sanction that sort of thing, do you?

Unidentified Justice: [Laughter]

Mr. Plowden: Well, I'd a whole lot rather you sanction that than open up the courthouse door to all of these kinds of lawsuits that we're liable to face here.

And... and Gebser says exactly that, Your Honor please.

Justice Breyer: Is it possible...

Justice O'Connor: What Gebser focused on, of course, was the concept that if the school district has actual knowledge of the problem and is deliberately indifferent to it, then there can be liability.

Mr. Plowden: Yes, deliberate indifference.

Justice O'Connor: Now, that does offer some kind of standard.

It isn't a negligence standard.

Mr. Plowden: Oh, no, ma'am.

And... and... and you defined... the opinion of the Court defined that to mean a refusal to act as... as being deliberate indifference.

Justice Scalia: Well, what's wrong...

I understand what the... what the... exactly... I assume if the situation in Justice Stevens' hypothetical were that the... the male students were making use of a... of a... a school facility, for example, holding the gates shut or something of that sort, I assume you could say that it is the responsibility of the coach or whoever has authority over the field to keep that gate open regardless of... regardless of what the male students are doing.

I mean, in some... in some situations at least, you would be able to find affirmative action on the part of an agent of the school which is causing these... these young women to be excluded from the athletic facilities.

Mr. Plowden: I think...

Justice Scalia: And you'd have no problem with finding liability there.

Mr. Plowden: If Your Honor please, I think that's correct.

You can pose a hypothetical question to the point that the... the involvement of the teacher or the coach or whoever it might be, is such that he is... he or she has become complicit or co-conspiratory...

Justice Scalia: Something more than merely... merely refusing to punish these boys for something that they do off of the school grounds.

Mr. Plowden: To the extent that... that you could draw the conclusion that that person had formed an intent to discriminate...

Justice O'Connor: No.

Justice Scalia: My hypothetical is that the...

Mr. Plowden: and that's Gebser.

Justice Stevens: what the adult member of the school staff does is nothing.

He does nothing with full knowledge.

He doesn't do anything affirmatively, and you say there's no liability in that case.

Mr. Plowden: Yes.

Justice Stevens: Even if not only they... not only do they exclude them from the... from the field, but they also happen to beat them up or something like that because they really want to teach them a lesson, there's still no liability.

Mr. Plowden: Well, if they beat them up and there's... and there's assault...

Justice Scalia: No Federal liability.

Mr. Plowden: and that sort of thing involved, then there's mandatory reporting laws that that teacher or person...

Justice Scalia: I think we need a Federal law to solve that problem...

Justice Stevens: Well, that's the question.

Justice Scalia: of... of young... young men beating up young women.

Justice Breyer: Before you leave that, could... could...

Mr. Plowden: Yes, sir.

Justice Breyer: I mean, what Justice O'Connor I think was suggesting possibly is the possibility of creating a standard that's strict enough to stop the administrative problem that you're worried about.

Now, suppose you did combine what she suggested, which is that the school district needs actual knowledge and virtually doesn't respond at all, with what I think was implicit in your opponent's suggestion that maybe the harassment would have to rise to the level of a significant denial of the program's benefit.

Now, if you put those two things together, the significant denial of the program's benefit so it isn't just teasing or things that the kids can get over, together with a very strict standard of liability such that the school district has to actually know and its response has to be nonexistent or grossly inadequate... if you put those two things together, would you leave the kind of leeway for the school district that I think I suggested might be desirable and that you apparently think is desirable?

Mr. Plowden: If Your Honor please, no matter what the standard, how high the test or where you set the bar, once you have opened the door to the courthouse to these lawsuits, it means that a Federal district judge at some... some stage of the procedure here, a motion to dismiss, summary judgment, or... or perhaps even a trial, is going to have to make a determination, was the response of the school officials enough.

Justice Kennedy: Under the standard proposed by Justice Breyer, are you confident how the case at bar would come out?

Mr. Plowden: I'm sorry.

I didn't...

Justice Kennedy: Under the standard proposed by Justice Breyer, are you confident in knowing how this case would come out?

Mr. Plowden: I'm not sure, Your Honor.

I haven't thought about that, and I'm not... to be perfectly honest with you, not entirely sure I understood his standard.

Justice Breyer: I was simply taking Justice O'Connor's idea that the school district has to know exactly and they have to have no response or a grossly inadequate response, virtually no response, and in addition, the harassment has to rise to the level of denying the significant benefit of the program, which I think was discussed on the other side.

So, it can't those are the ideas of keeping the teasing out, of keeping anything, even ordinary, you know... well, I won't repeat it.

Mr. Plowden: We're creating a higher standard here to...

Justice Souter: Very high.

Justice Breyer: Very high.

Chief Justice Rehnquist: Quite high.

Mr. Plowden: I would still draw the line at no sex harassment here if no... no... excuse me... no private right of action here if the predicate conduct is the student.

I make that distinction, and I would suggest to the Court that there is a difference between the relationship of a school district to teachers and students that should inform the rule that you adopt.

Justice Ginsburg: And you would say the same thing under title VI for race then?

Let's say that there's a racial minority in the school, and the racial majority on the playing field during recess is beating up on the minority, and the teachers stand by.

They're not affirmatively encouraging anything.

They're just not stopping it.

There would also be no liability under title VI?

Mr. Plowden: Yes, Your Honor, that's what I'm saying.

Most of those racial harassment cases, the older ones anyway, invariably involve situations in which there was an affirmative injunction in force to desegregate the school district and, as part of it, were provisions about harassment.

Justice O'Connor: Do we... do we have to be concerned at all with the fact that in public schools, in any event, the children are compelled by law to attend and the school does act as a sort of in loco parentis situation during the school day?

Does that impose responsibility on a school as a result that we have to be concerned about here that might be part and parcel of the background of title IX?

Mr. Plowden: No, ma'am.

And I... and I... you don't have to be in terms of whether or not there's going to be a damage action in Federal district court for this.

But let me hasten to add that refusing to create such a remedy is not going to be any green light for children to misbehave at will.

Every school in my State is required by law... it's mandatory to have a school behavior, school discipline code, and these are on file with the State.

Every State has mandatory reporting of sex abuse by children laws and makes it a misdemeanor to fail to do that on the part of a teacher.

Because of the educational efforts of DOE, as well as the associations that boards of education belong to, sex harassment policies and procedures and grievance mechanisms have been widely adopted throughout my State and throughout the country.

In Georgia a school board is... is a local tribunal.

It is set up under State law as a local tribunal to hear and decide any action that arises under the school law, and under that statute, parents who are dissatisfied with the response they get from a principal, or indeed even a superintendent, can appeal that matter to the board of education.

I've had those cases happen in my county where I live involving this very issue.

In addition to those mechanisms that are within the school context, there's the possibility of a tort action against students if... if it arises to the level of a battery or an assault.

There's juvenile court if they are underage, and for the students who have reached the age of majority, there's adult criminal court.

All of these mechanisms are there to help the parent and the school...

Justice Stevens: Mr. Plowden, I may have missed it in your description.

Is there a remedy under State law against the school board if it totally ignores a serious problem?

Mr. Plowden: Not in my State, Your Honor.

Justice O'Connor: No, no.

Justice Scalia: What is the authority of the schools in... in... in your... in your State?

Do the schools have authority to expel students or discipline them for things that they do off the school grounds?

I mean, suppose this harassment is going on before the students get to school?

Can... can... is there authority...

Mr. Plowden: There is an extent to which schools can assert jurisdiction for misbehavior that occurs off the school grounds, yes, sir.

Justice Scalia: What is... what is the extent?

Mr. Plowden: It has to relate to something at the school.

For example, students are harassing somebody at the mall or the problem begins at school and it ends after they get to the bus stop and they're on their way home from there.

Those kinds of things are routinely dealt with as school discipline matters under these discipline codes that I was referring to.

Now, that's not statutory in Georgia, but most districts assert that right to do that.

Justice Scalia: So, if it's sort of generalized harassment that occurs off the school grounds, you'd say that they have no... probably have no authority, but if it is harassment that relates specifically to what goes on at school, even if it occurs off the school grounds, you think they would have authority.

Mr. Plowden: Yes, sir.

In Georgia, there's a body of law developed by the State board.

That's where these things get appealed, and they hold that there must be some connection there.

You can't just willy-nilly apply disciplinary action at school for totally unrelated activity off campus.

Justice Scalia: Of course, the text of title IX here is... I mean, it speaks very broadly.

It says, no person shall, on the basis of sex, be excluded from... be excluded... it's in the passive... be excluded from participation in, be denied the benefits of, or be subjected to discrimination.

It doesn't say who has to do this act which results in the being.

Mr. Plowden: It says...

Justice Scalia: So, technically under the words of the statute, why couldn't we say that the individual students are in violation of section IX?

Mr. Plowden: It says...

Justice Scalia: In Justice Stevens' example, why couldn't we say that the students who prevent the girls from entering the field violates section IX themselves?

Mr. Plowden: If Your Honor please, it says that that... those kinds of things shall not happen under any program or activity which receive Federal funds, which is then further defined to mean all of the operations of a local school district.

So, I think the statute clearly focuses in the first clause, if you will, on the participant in the program, but it also says who is not going to... who is going to be responsible if any of these things occur...

Justice Scalia: Well, that's one way to read it, to read as... as implicitly saying shall not be excluded by the person who runs the program, but that's not really in there.

And certainly another way to read it is that anyone who excludes someone from participation in a... in a school program that's federally funded violates title IX.

Mr. Plowden: I suppose...

Justice Scalia: You could read it that way, couldn't you?

Mr. Plowden: It is a possible reading of the statute and...

Justice Ginsburg: How has it been read by the agency that administers it?

Title IX has been around now for over a quarter of a century.

And a basic question like that, who does the statute... who is the object of the statute... hasn't there been something...

Mr. Plowden: Well, the agency that administers this statute in my case is the Department of Education through the Office of Civil Rights.

And long after this... the conduct at issue here and the lawsuit was filed in... in fact, it came... became final in 1997, they issued some guidance on this subject.

Justice Ginsburg: But not just... Justice Scalia's question didn't go to sexual harassment.

It's who is responsible under title IX.

You answered it is the recipient of Federal funds.

Mr. Plowden: They...

Justice Ginsburg: It is not the... the student in the school.

Mr. Plowden: They adopt what I call the occurs in theory, which is a possible... although not one we would urge, but a possible broad reading of the statute to mean, in effect, anything that happens anywhere in the school community by anybody.

Justice Ginsburg: Well, one thing... one thing is what the recipient is responsible for, but where do you get the limitation of title IX to the recipient of Federal funds?

Chief Justice Rehnquist: I think...

Mr. Plowden: In this case I get it in this fashion, Your Honor.

As the opinion of the Court says in Gebser, what we're doing here is crafting the contours of an implied private right of action.

It's not in a statute anywhere.

It's a creation of this Court in the Cannon case.

And... and Gebser goes on to say that you have the leeway in... in fashioning this remedial scheme to come out with a rule that is consistent with the purpose of the statute but which at the same time ensures that the Federal funds in question are going to wind up going to support education programs rather than being diverted to support litigation.

So, although... albeit that is a possible reading, the occurs in... you could read it that way.

We would strongly urge the Court not to.

You don't have to under your jurisprudence as set out in Gebser, and you can read it in a more sensible fashion that avoids all of the problems that would arise... will arise if they are correct and... and there is this private right of action because once... once you step over that line, once you cross my bright line test that I'm suggesting to you here today, then not only do parents have all of the kinds of formal and informal adjustment mechanisms that I... that I described a while ago, but now the door to the Federal courthouse is open.

A January 9 op ed piece indicates that according to a study by the American Association of University Women, over three-quarters of all girls and over two-thirds of all boys report being harassed somewhere in grades 8 through 11.

The potential here for litigation is enormous.

Justice Ginsburg: But we don't know from that whether... what the definition of harassment was.

Everyone agrees it's got to be pervasive.

It's got to be repeated, and the school has to be deliberately indifferent.

In the survey that you're referring to, anybody who had been... had one exposure could answer yes.

Mr. Plowden: Yes.

Justice Ginsburg: And that certainly is not what anyone says would be... would trigger liability under title IX.

Mr. Plowden: Well, I'm not suggesting here that all two-thirds of the 45 million boys would have a claim.

I'm just suggesting to you that once you open the door, two things... well, three things really have occurred here.

No matter where the bar is, we're now in Federal court litigating over the response of the school district to these reports, after-the-fact reports like you have in this case, of sex harassment.

Justice Scalia: Well, it's only money.

Unidentified Justice: [Laughter]

Mr. Plowden: I would respectfully suggest, Your Honor, that you could be talking about a lot of money here.

Creating this cause of action could turn out to be self-defeating in terms of the use of Federal funds to enhance these programs.

Justice Kennedy: It's not... it's not only money.

Isn't it... isn't it a necessary consequence of the position the petitioners argued that there will be a Federal code of conduct in every classroom in the country?

Mr. Plowden: Exactly, Your Honor.

Precisely my point.

What will happen here is... and it's a backward looking and a forward looking situation, if you will.

For the case that's made it into court, the Federal district judge has got to deal with the issue.

Regardless of how high the bar is set, what the test is, there's got to be a review on some basis looking back at the action or alleged inaction, whatever you call it, of the school officials and response to the reports of harassment by the student.

On a going forward basis, school administrators, school board attorneys are going to have to constantly refine and fine tune the punishment provisions in their discipline codes in order to make sure that they... they're protected for the next case that comes along.

When the... when the district court somewhere decides, well, this was not enough, then we may need to adjust our punishment, and as the principal in this case said, get down on them a little harder.

So, you've... you've got both of those problems.

You've also, in... in the course of doing this, focused the attention of the administrators, teachers, school officials into the courthouse into the litigation process and away from the school function, the school program which, after all, is the object of these various Federal grants that we're talking about here.

Justice Ginsburg: Mr. Plowden, I understand the... the problem that people have been wrestling with, that is, how do you draw the line between rough-stuff teasing and harassment that's covered.

But on the other hand, I don't understand why it's so hard to separate negligence from deliberate indifference, that it means you have to know and you have to deliberately not do anything about it.

It seems to me that that's not a hard standard to define and apply.

Mr. Plowden: I'm not suggesting so much that the difference there is hard to apply as I am saying that it has to be applied at all because once you get into the courthouse, whatever that standard might be that you would adopt, it's got to be applied in court with children testifying about the pervasiveness or lack of it here or perhaps even the welcomeness of it.

That's another concept here that goes into this adult notion of sex harassment that you'll now be applying to the children.

Justice Breyer: Would your answer be the same if it were racial harassment?

Mr. Plowden: Under this scheme, yes, Your Honor, it would.

I...

Justice Breyer: I mean, suppose... you know, imagine very, very severe racial harassment by students against someone who was different racially and... and they can't use the program.

Mr. Plowden: They can't benefit.

Justice Breyer: To the point where they can't benefit from the educational program.

Is it likely that the Congress wanted that to be ignored?

Mr. Plowden: Not if the adult involvement in that situation in terms of ignoring it, looking the other way, to the point perhaps of covering it up, if you get to that stage, then under those circumstances you... you've perhaps crossed over my bright line.

Justice Stevens: No, but you still have... it seems to me you have the same hypothetical in the black/ white situation.

The white boys say, this field is for whites only, and the... and the... and the school does nothing.

You still say that... there's no liability there.

Mr. Plowden: I do, Your Honor.

Justice Breyer: You have to say that.

Mr. Plowden: I do, Your Honor, and I...

Justice O'Connor: Well, does title IX cover racial discrimination?

Justice Stevens: No, I'm talking about title VI.

Mr. Plowden: Title VI does.

Justice Ginsburg: And they work the same way, the two, with respect to the... to the mechanism, the private right of action and the OCR authority.

Mr. Plowden: Yes, Your Honor.

You have probably inferred a private right of action in Guardians if you put together all the... the opinions and add up the... the positions of the court in that case.

Justice Kennedy: The statute in front of us is written in the... I guess the passive voice.

No person shall be subjected.

It seems to me that... that aids somewhat the construction that the petitioner is urging on us.

Schools simply have a duty to ensure that the prohibited conduct doesn't happen no matter who causes it.

Mr. Plowden: Again, Your Honor...

Justice Kennedy: That's a permissible reading it...

Mr. Plowden: I would agree that you can read that statute and the definitions if you follow them through to the end, that there is this occurs in theory out there.

I would strongly urge the Court to reject that reading.

You don't have to read it that way.

Justice Scalia: Well, if you give it that reading, you don't have to sue the school.

You could... you could sue the individual kids who... who are doing the sexual taunting...

Mr. Plowden: Well, the...

Justice Scalia: or the... the individual students who are excluding people from the playing field.

Mr. Plowden: Well, if Your Honor please, jurisprudence thus far... and of course, you haven't addressed this issue...

Chief Justice Rehnquist: No.

Justice Scalia: I mean, if you accept Justice Kennedy's position that the passive voice is the passive voice.

Mr. Plowden: You could perhaps extend the private right of action that far to reach the conduct of nonrecipients in your example.

Justice Ginsburg: Has any court ever done that?

Mr. Plowden: Not that I'm aware of, Your Honor.

We urge the Court in this case to adopt a rule which is informed not by the exception, not by these hypotheticals, but which recognizes that a school district... school districts in this country are making concerted efforts to deal with the problem of student misbehavior whether it has a sexual connotation or not and that Federal funds should be... should be used to support educational programs rather than litigation.

Refusing to adopt the rule petitioner urges does not condone that conduct, but it does recognize that all violence and all harassment from whatever source and whatever direction is objectionable.

But it leaves the responsibility of dealing with that to parents and schools operating under State law.

We urge you not to apply a rule which federalizes school discipline process by applying adult concepts to children.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Plowden.

The case is submitted.