Davis v. Monroe County Board of Education - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 98-843, Davis vresus The Monroe County Board of Education will be announced by Justice O'Connor.

This case is here on appeal from the United States Court of Appeals for the Eleventh Circuit.

Title IX of the Education Amendments of 1972 provides that no person in the United States shall, on the basis of sex, be excluded from participation and be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.

In this case, the petitioner filed suit seeking damages and other relief under Title IX against the respondent school board.

The petitioner alleged that her fifth grade daughter, LaShonda had repeatedly been the victim of a fellow student's sexually offensive comments and actions over a five month period.

Not withstanding notice of the misconduct, the teachers and that the school principal, petitioner alleged that no disciplinary action was taken against the offending student.

Although the school failed for many months even to change LaShonda's assigned seat next to the student, who was harassing her, the student's misconduct was sufficiently severe to warrant criminal charges and he ultimately pleaded guilty to sexual battery.

The District Court dismissed petitioner's Title IX claim and the en banc Court of Appeals for Eleventh Circuit affirmed the dismissal, concluding that Title IX does not create a private damages action for a school's failure to respond the reports of student-on-student sexual harassment.

In an opinion filed with the Clerk of the Court today, we reverse the Court of Appeals decision and remand for further proceedings.

In our decision last term in Gebser versus Lago Vista Independent School District, we concluded that Title IX supports a private damages action against the School District, which receives federal funds in cases of sexual harassment of a student by a teacher, where the recipient School District remained deliberately indifferent to known acts of sexual harassment.

In the opinion filed today, we conclude that school boards, which are federal funding recipients may likewise be liable where they remain deliberately indifferent to known acts of sufficiently severe peer harassment in their schools.

Remindful that as legislation enacted pursuant to Congress' authority under the Constitution's Spending Clause that Title IX must provide the putative recipients, the schools accepting the money, with notice of the scope of their potential liability should they choose to accept federal funds.

Reading the statute with this notice requirement in mind, we conclude that student-on-student harassment must be so severe, pervasive, and objectively offensive that it can be said to deprive its victims of access to a school's educational programs or activities.

Recognizing the practical and legal constraints facing school administrators, we also make clear that funding recipient school board can be liable in damages only where its response to the harassment, is clearly unreasonable.

In various ways federal law affects the ability of school administrators to discipline their students and the law sometimes works to deter disciplinary action.

Title IX cuts in the opposite direction; it encourages schools to fulfill their obligation to protect students from extreme misconduct by their peers.

The dissent urges that the Court's holding today will teach little Johnny a perverse lessons in federalism.

In fact, Title IX works to ensure that little Mary may attend class unhindered by severe and pervasive acts of the sexual harassment by her classmate.

Justice Kennedy has filed a dissenting oinion in which the Chief Justice, Justice Scalia and Justice Thomas have joined.

Argument of Justice Kennedy

Mr. Kennedy: In view of the importance of the case it seems appropriate to read some portions of rather lengthily dissent.

A vital safeguard for the federal balance is the requirement that when Congress imposes a condition on the States' receipt of federal funds it must do so unambiguously.

Only if States receive clear notice of the conditions attached to federal funds can they guard against excessive federal intrusion into state affairs and be vigilant in policing the boundaries of federal power.

While the majority opinion purports to give effect to these principles, in fact it eviscerates the clear-notice safeguard of our Spending Clause jurisprudence.

The majority's opinion purports to be narrow, but the limiting principle it proposes are illusory.

The fence the court has built has made of little sticks, and it cannot contain the avalanche of liability now set in motion.

The potential costs to our schools of today's decision are difficult to estimate.

But it is clear, they are so great that it is most unlikely Congress intended to inflict them on the States.

Rather than beginning with a language of Title IX itself, the majority begins with our last term's decision in Gebser.

It appears to discover there are sweeping legal duty-divorced from agency principles for schools to remedy third-party discrimination against students.

It should surprise no one, however, the schools, which are the primary locus of most children's social development are rife with inappropriate behavior by children who are just learning to interact with their peers.

It is doubtless the case moreover that much of this inappropriate behavior is directed toward members of the opposite sex, as children in the throes of adolescence struggle to express their emerging sexual identities.

It is a far different question, however, whether it is either proper or useful to label this immature or childish behavior as gender discrimination.

Nothing in Title IX suggests that Congress even contemplated this question, much less answered it in the affirmative and in unambiguous terms.

There is no established body of federal or state law, in which courts may draw in defining the student conduct that qualifies that's Title IX gender discrimination.

Analogies to Title VII hostile environment harassment, precedents are inapposite because schools are not workplaces and children are not adults.

Analogies to Title IX teacher sexual harassments of students are similarly flawed.

A teacher's sexual overtures towards a student are always inappropriate.

A teenager's romantic overtures to a classmate, even when persistent and unwelcome, are an inescapable part of adolescence.

The difficulties schools will encounter in identifying peer sexual harassment are already evident in teacher's manuals designed to give guidance on the subject.

For example, one manual suggests that one student saying to another, you look nice, could be sexual harassment depending on the tone of voice, how the student looks at the other, and who else is around.

This conclusion will likely be compounded once the sexual harassment label is invested with the force of federal law backed up by the private damage suits.

The majority's inability to provide any workable definition of actionable peer harassment, simply underscores the myriad ways, in which an opinion that purports to be narrow is in fact so broad that it will support untold members of lawyers, who will prove adept at presenting cases that will withstand the defendant school district's pretrial motions.

Each of the barriers to run-away litigation, the majority offers us crumbles under the weight of even casual scrutiny.

For example, there is a string of adjectives the majority attaches to the world "harassment" and "severe, pervasive, and objectively offensive".

But these fail to narrow the class of conduct that can trigger liability, since the touchtone for determining whether Title IX viability exists is the effect on the child's ability to get an education.

The majority seems oblivious to the fact with almost every child at some point had trouble in school because he or she is being teased by his or her peers.

Most children responded teasing in ways that detract from their ability to learn.

The prospect of unlimited Title IX liability in all likelihood will breed a climate of fear that encourages school administrators to label even the most innocuous of child conduct sexual harassment.

Disregarding state-law remedies for student misbehavior and incentives that our schools already have to provide the best possible education to all of their students, the majority seeks in effective put an end student misbehavior by transforming Title IX into a Federal Student Civility Code.

In the final analysis this case is about federalism.

Yet the majority's decision says not one world about the federal balance.

Preserving our federal system is a legitimate end in itself.

It is to the means to other ends.

It ensures that essential choices can be made by a government more approximate to the people than the vast apparatus of federal power.

Defining the appropriate role of schools in teaching and supervising children, who are beginning to explore their own sexuality and learning how to express it to others, is one of the most complex and sensitive issues our schools face.

Heedless of these considerations, the court rushes forward finding that the cause of action it creates is necessary to affect the congressional design.

It is not.

Nothing in Title IX suggest that Congress intended the result the court reaches today much less dictated it, in unambiguous terms.

Today's decision cannot be laid at the feet of Congress; it is the responsibility of the court.

Trusted principles of federalism are superseded by a more contemporary imperatives, perhaps the most grave and surely the more lasting disservice of today's decision, is that it that ensures the Court's own disregard for the federal balance soon will be imparted to our youngest citizens.

The Court clears the way for the Federal Government to claim center stage in America's classrooms.

Today's decision mandates to teachers instructing and supervising their students that dubious assistance of Federal Court plaintiffs and their lawyers and makes the Federal Courts the final arbiters of school policy and have many disagreements between students.

After today, Johnny will find that routine problems of adolescence are to be resolved by invoking the federal right to demand assignment to a desk two rows away.

If there will be any doubt of the futility of the court's attempt to hedge its holding about with words of limitation for future cases, the result in this case provides the answer.

The complaint of this fifth grader survives and the school will be compelled to answer in Federal Court.

We can be assured that like suits will follow, suits which in cost and number will impose serious financial burdens on local school districts, the taxpayers who support them and the children they serve.

Federalism and our struggling school systems deserve better from this Court.

As Justice O'Connor has already indicated, the dissenting opinion has been joined by the Chief Justice and Justices Scalia and Thomas.