Title IX does not impose liability on a school district for peer sexual harassment

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Rowinsky v. Bryan Independent School District, No. 95-20049, 1996 U.S. App. LEXIS 6875 (5th Cir., April 2, 1996)

Jane and Janet Doe, eighth graders in the Bryan Independent School District (BISD) in Texas, were sexually harassed by male classmates throughout the school year. On the school bus a male student, G.S., regularly swatted the girls' buttocks as they passed him on the way to their seats, directed obscene comments at them, and at times groped their genital areas. Another male student, L.H., reached up each of the girls' skirts and groped their genitals. During class a third male student, F.F., reached up Janet's shirt and unfastened her bra.

The mother of Jane and Janet, Debra Rowinsky, complained to school officials about the harassment. School officials responded by suspending G.S. for three days and F.F. for a day and a half; L.H. apparently was not punished. Rowinsky complained that such punishments were insufficient, but school officials refused to take further action.

Rowinsky filed suit against BISD in federal court, alleging that BISD and its officials violated Title IX by condoning and causing sexual harassment that created a hostile environment for her daughters. Title IX prohibits discrimination based on sex in educational programs receiving federal financial assistance. The district court granted BISD's motion for summary judgment and dismissed Rowinsky's case before trial. Rowinsky, the court ruled, had failed to state a claim under Tide IX because she failed to show that sexual harassment and misconduct toward girls was treated less severely than such conduct directed at boys. Rowinsky appealed.

The Fifth Circuit Court of Appeals affirmed the district court's ruling, holding that a recipient of federal funds under Title IX cannot be held liable for sex discrimination when the perpetrator is a party other than the recipient or its agents.

The court began its opinion by conceding that the language of Title IX—"no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activities receiving federal financial assistance"—does not limit its prohibition of sexually discriminatory practices to recipients only. The court went on to find, however, that the structure of the statute, the statute's legislative history, and agency interpretations of the statute, all indicate that Title IX prohibits sex discrimination by grant recipients only.

The court found that Congress enacted Title IX under its spending power: this means Title IX is a funding statute rather than a civil rights statute and that Congress intended to obtain compliance with Title IX's conditions by the inducement of funding rather than by the threat of punishment. Imposing liability for the discriminatory acts of third parties would be incompatible with this purpose, said the court, because recipients have little control over the behavior of third parties. This lack of control over third-party violations of Title IX would induce recipients to turn down Title IX grants and escape its conditions rather than undertake the risk of uncontrollable liability.

The statute's legislative history also supports limiting Title IX liability to discrimination by grant recipients. The court noted that one senator who supported the enactment of Title IX listed the kinds of discrimination that prompted the legislation, and they all involved practices by grant recipients. This same senator stated that the three basic types of discrimination Title IX was meant to address were institutional discrimination in admissions, in availability of services or studies, and in employment. The court also noted that an amendment proposed at the time of Title IX's enactment called for a study of sex discrimination and suggestions for further legislative remedies. If Congress had intended Title IX to be as broad as Rowinsky argues, such further legislation would have been unnecessary.

The Office of Civil Rights' (OCR) interpretation of Tide IX accords with limiting liability to discriminatory practices by grant recipients. OCR's primary interpretation of Title IX is found in the statute's implementing regulations, all of which address acts performed by the recipients themselves. In addition, OCR's policy memorandum specifically states that the issue of peer sexual harassment has been left unresolved. The court rejected evidence proffered by Rowinsky that in a recent letter of finding OCR concluded that Title IX does apply to peer sexual harassment. Letters of findings, said the court, are promulgated during the course of investigating specific institutions for Title IX violations, and their purpose is to obtain voluntary compliance from the offending institution. They do not result from deliberate consideration, as regulations do, and are therefore not entitled to judicial deference.

If Rowinsky had been able to show that BISD treated sexual harassment of boys more seriously than it treated sexual harassment of girls, she might have made out a Title IX claim, but because she alleged no discrimination on the part of BISD, the lower court properly dismissed her case.

[Editor's Note: This case directly conflicts with a case from the Eleventh Circuit Court of Appeals, Davis V. Monroe County Board of Education, 74 F.3d 1186 (11th Cir. 1996) (see digest in School Law Bulletin 27 [Spring 1996]: 22–23), which held that Title IX does provide a remedy for peer sexual harassment. Unless the United States Supreme Court is asked, and agrees, to review either one of these cases, the law will remain unsettled, with Title IX providing a remedy for peer sexual harassment in some federal judicial circuits and not providing such a remedy in others. The Fourth Circuit, which has jurisdiction over North Carolina, has not ruled on the issue.]

summarized by Ingrid M. Johansen

posted Summer 1996