Gebser v. Lago Vista Independent School District

PETITIONER:Gebser
RESPONDENT:Lago Vista Independent School District
LOCATION:The White House

DOCKET NO.: 96-1866
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 524 US 274 (1998)
ARGUED: Mar 25, 1998
DECIDED: Jun 22, 1998

ADVOCATES:
Beth S. Brinkmann – On behalf of the United States, as amicus curiae, supporting the petitioners
Beth Ann Brinkmann – for United States as amicus curiae by special leave of the Court
Terry L. Weldon – Argued the cause for the petitioners
Wallace B. Jefferson – Argued the cause for the respondent

Facts of the case

Alida Star Gebser, a high school student in the Lago Vista Independent School District (“Lago Vista”), had a secret sexual affair with one of her teachers. At the time, Lago Vista had no official procedure for reporting sexual harassment nor any formal anti-harassment policy, as required by federal law. One day, after the two were discovered having sex, the teacher was arrested and fired. Claiming she was harassed in violation of Title IX of the Education Amendments of 1972 (the “Amendments”), providing that no person “be subjected to discrimination” under any federally funded education program or activity, Gebser sought damages against Lago Vista. On appeal from a decision affirming a district court’s ruling in favor of Lago Vista, the Supreme Court granted Gebser certiorari.

Question

Can a federally funded educational program or activity be required, under Title IX of the Education Amendments of 1972, to pay sexual harassment damages to a student who was involved in a secret relationship with a member of its staff?

William H. Rehnquist:

We’ll hear argument next in Number 96-1866, Alida Star Gebser and Alida Jean McCullough v. the Lago Vista Independent School District.

Mr. Weldon.

Terry L. Weldon:

Mr. Chief Justice, may it please the Court:

The issue in this case is the standard under which a school district can be held liable for violation of Title IX of the education amendments when one of its teachers intentionally discriminates against one of his students by engaging in sexual harassment of her.

Petitioner was clearly subjected to intentional discrimination under, using the terminology of this statute, under the educational programs and activities provided by the respondent.

William H. Rehnquist:

Was there some showing that it was discriminatory?

Because I read many of the statements in the various briefs in the proceeding and there’s virtually no mention of discrimination.

There’s a lot of mention of sexual harassment.

Terry L. Weldon:

We’re using in the briefs and in the documents in the case that are in the joint appendix, we’re using the term, sexual harassment, as synonymous with discrimination, and I believe the Franklin court–

William H. Rehnquist:

Well, I think in Oncale we said it wasn’t.

Terry L. Weldon:

–Well–

William H. Rehnquist:

That you have to show that the treatment… not only that the treatment was harassing, but that it was… you were treating one sex on a basis that you would not have treated the other sex.

Terry L. Weldon:

–And I think that’s amply shown by the record in this case and I think that the Franklin case simply stands for the proposition that when a teacher intentionally harasses a student, that is discrimination based on sex.

William H. Rehnquist:

Well, the Franklin case said there’s a private cause of action.

Terry L. Weldon:

Yes, sir.

William H. Rehnquist:

But are you saying that it would be enough if you showed there was just harassment of a student by a teacher of a different sex?

Terry L. Weldon:

If the harassment was based on sex, yes.

William H. Rehnquist:

Well, I think the statute says you have to discriminate on the basis of sex.

You have to… the teacher has to treat students of one sex differently from another.

Terry L. Weldon:

And in this case that’s exactly what happened.

The teacher singled out this young girl.

William H. Rehnquist:

Because of her sex?

Terry L. Weldon:

Because of her sex.

The Fifth Circuit standard from which we appeal would require proof of actual knowledge not only in the school district generally but in the superior of the teacher who was guilty of the discrimination, or at least in some person who had immediate power over that teacher with respect to–

Sandra Day O’Connor:

Well, you know, I think the tough question we need to answer here is whether a suit under Title IX, which this is, I think–

Terry L. Weldon:

–Yes, Your Honor.

Sandra Day O’Connor:

–should be governed by the principles of Title VII suits, or whether there is some different standard here under Title IX because essentially it’s a Federal financial grant program under Title IX, and it’s quite possible that agency principles don’t apply to Title IX at all.

Are you going to address that question?

Terry L. Weldon:

I’ll do it right now.

The… there are obvious similarities between Title VII and Title IX in that they have as their object the prevention or redress of sexual discrimination, but there are important differences as well.

Terry L. Weldon:

As we are argue in some detail in the brief, those differences lead, I think, to the conclusion that Title IX provides wider protection even though it does not use the word agent in a definitional way as Title VII does with respect to employers.

The reason for that is that the focus of the two statutes is quite different.

The focus in Title VII says… is on the employer, and it tells what the employer and his agents are prohibited from doing.

As the Court pointed out early on in the Cannon case, the focus of Title IX is completely different.

The focus there is on the beneficiary, and the focus is on discrimination without respect to who might be guilty of the discrimination.

David H. Souter:

But, what about the supposed constitutional distinction between them?

I mean, the argument is being made on the other side that under what is in effect a spending power, piece of spending power legislation, an obligation cannot be imposed upon the Government that takes the money, which is not very clearly spelled out.

And if the standard of liability for the employer is not clearly spelled out, then the only standard that can be applied is that which necessarily would be applied if there’s going to be liability at all, i.e. in this case actual knowledge.

What’s your response to that argument?

Terry L. Weldon:

The respondent, with all respect, I think overreads the Spending Clause and overreads the cases that construe the Spending Clause.

My belief is, and I’m referring specifically to Pennhurst, my belief is that the Spending Clause statute must fairly inform the recipient of the funds what the conditions of the funding are.

At the time in question in this case the school district obviously knew the contents of Title IX.

The school district obviously knew the contents of regulations which have the force of statute because the statute authorizes the Department of Education and predecessor agencies to enact these regulations.

David H. Souter:

Well, are you saying that there were regulations at the time in question here that indicated that the standard of employer liability for employee conduct would be something different from actual knowledge?

Terry L. Weldon:

That would be my–

David H. Souter:

What did they say?

Terry L. Weldon:

–my disagreement with the implication of your question, Justice Souter, and that is that I do not believe that the Pennhurst case or any of the Spending Clause cases require any extensive catalogue of what facts or what fact patterns might trigger liability, any more than the Spending Clause requires an exhaustive listing of the potential remedies that might follow if there is a violation.

David H. Souter:

Do you draw any distinction between the significance of the Spending Clause for primary liability… i.e., the liability of the employee, or the conduct–

Terry L. Weldon:

Yes.

David H. Souter:

–which could give rise to liability and, on the other hand, the significance of the Spending Clause argument for determinations of imputed or vicarious liability?

Are the implications different in those… for those two different questions?

Terry L. Weldon:

I think… to the extent that there are differences, I think they get resolved the same way.

I think that the Spending Clause simply… and I don’t mean to oversimplify, but simply requires that the recipient of Federal funds have some idea, some clear idea what the conditions of accepting the fund are, and here I find no ambiguity in anything that the school district–

Antonin Scalia:

So… and do you–

–Of course, it’s sort of swallowing the camel and straining out the gnat if… inasmuch as the statute doesn’t even show on its face that there’s a private cause of action at all.

Terry L. Weldon:

–Yes, sir.

Antonin Scalia:

If we really believe strongly in the principle that Spending Clause impositions upon the States must be clearly expressed, there wouldn’t be a cause of action here at all, right?

Terry L. Weldon:

If I may, Justice Scalia, I’ll invoke your concurring opinion in the Franklin case and simply observe that a couple of bridges have been crossed.

Antonin Scalia:

No, but I’m saying, it’s… we’re sort of switching the music if, having created the cause of action in the face of its nonexpression, despite the fact that this is a spending thing, we suddenly… we get very picky, I suppose, about what the content of that cause of action is.

Terry L. Weldon:

Well, I–

Antonin Scalia:

Of course, Cannon was decided long before we adopted this rule about Spending Clause certainties.

Terry L. Weldon:

–I understand that, but I’d like to point out, as you pointed out in that same concurring opinion, that Congress then took subsequent action–

Right.

Terry L. Weldon:

–with the enactment of the civil rights bill that extended Title IX to the States.

Antonin Scalia:

Quite so.

Terry L. Weldon:

And I believe that it has to be taken in the context of the Cannon case.

Antonin Scalia:

Oh, I’m not suggesting going back on it, but I’m suggesting that in our… I’m trying to help you.

Never mind.

[Laughter]

It seems to me an argument in your favor that we’ve already taken the step, and Congress has accepted it, of creating this cause of action in the teeth of its nonappearance in the statute.

Terry L. Weldon:

And then, of course, the second step was to recognize in Franklin that despite the silence of the statute, which obviously, being implied, would be silent, that the presumption is that all reasonable remedies or usual remedies apply.

Ruth Bader Ginsburg:

May I ask, to the extent to which Title VII would be the model, do you accept that the statutory caps that are in Title VII would apply under Title IX?

Terry L. Weldon:

Your Honor, I haven’t read the statute closely, but I think the statute is specific with respect to Title VII.

I think it would be entirely appropriate for Congress to consider whether enacting a statute imposing caps on Title IX precisely the way they have done for Title VII, but I do think–

Ruth Bader Ginsburg:

Yes, but it’s not there now, and yet this Title IX tells us very little, so we look… we fill in the gaps, I think you suggest, by looking to the law built up under Title VII, so one question was, but you wouldn’t take the caps from the statute?

I guess that’s… your answer is no, not unless Congress imposed them.

Terry L. Weldon:

–It’s obviously a policy consideration, but with all deference I think it’s probably… my view is that it’s a legislative policy consideration and not a judicial one.

Ruth Bader Ginsburg:

But the judicial… we… we have crafted this claim, and so we have to give it some content, too, because where else are we going to look?

Congress hasn’t done it.

Terry L. Weldon:

And again, your question is specifically with regard to caps–

Ruth Bader Ginsburg:

So I… so I… well, one thing to do is to say, we’ll do this the same way as Title VII, so we’ll incorporate the Title VII case law and the Title VII statutory revisions, but you say no.

Terry L. Weldon:

–I think the Title VII cases are an appropriate analogue.

I think the Court reflected at least that instinct, I wouldn’t call it a holding, by it’s reference to the Meritor in the midst of the Franklin case, but I think Title VII is just an analogue and not a direct road map, and I think the reason for that is principally because, first of all… two things.

The context of Title IX is significantly different than the context of Title VII.

Title IX obviously applies to education from kindergarten or preschool all the way up to post graduate, and the other reason is the text of the statutes are so completely different.

Antonin Scalia:

Do we… do you think we could adopt one standard of liability for the private right of action and permit HHS to use a different standard for the cutting off of funds under Title IX, or do we have to go in lockstep with… I mean, assuming we’re making it up, as Justice Ginsburg suggests, do we have to make it up in lockstep with HHS, or could… you know… do you understand what I’m asking?

Terry L. Weldon:

If you’re–

Antonin Scalia:

Suppose… if you do X–

Terry L. Weldon:

–Yes.

Antonin Scalia:

–you are liable for the cutting off of Federal funds under the regulations issued by the Secretary, which the Secretary has authority to issue.

Terry L. Weldon:

That’s right.

Antonin Scalia:

And the authority has… the Secretary has no authority to issue regulations about private causes of action, which we’ve created.

Does our private cause of action have to make the basis of liability the same thing that the Secretary says is the basis of cutting off Federal funds?

Terry L. Weldon:

I do not think so.

Frankly, that’s not a question that’s concerned me.

All right–

Terry L. Weldon:

It occurred to me in my preparation, but I do not think so.

I don’t think so because I think what would govern the case… the Court in these decisions is the text of Title IX and the text of the actual regulations, the Code of Federal Regulations that were adopted implementing Title IX as the Department was authorized to do.

Antonin Scalia:

–So we have to follow those regulations, you say.

If it’s a violation of the regs it’s the basis for liability in the private cause of action.

Terry L. Weldon:

I just want to point out… yes, but I want to point out that at least in my mind there’s a considerable distinction between the regulations in the Code of Federal Regulations, which are fairly minimal, as compared to the guidelines which are merely intended, I believe, and do not have the same statutory force as the regulations do.

The guidelines are a means of educating school districts and helping them implement Title IX, but they do not have the force of law with… in the same way as these regulations.

Antonin Scalia:

Are the school districts bound by the guidelines to the extent that if they don’t follow them they can have their funds cut off?

I thought they could.

Terry L. Weldon:

The Government is going to argue that extensively, and I don’t want to anticipate the Government’s argument too much, and I certainly wouldn’t want to disagree with them, but my own personal answer to that would be not necessarily.

Anthony M. Kennedy:

Well, you indicated that because of this… the Spending Clause nature of this act that the municipality or the governmental entity must be aware of the conditions under which its funds might be cut off.

Terry L. Weldon:

Yes, sir.

Anthony M. Kennedy:

It seems to me, if that’s so, that it is very difficult to say that they accepted the funds knowing that they would be cut off when there was some act occurring of which they had no knowledge.

Terry L. Weldon:

And the principal reason in this case that they did not have any knowledge is that they failed to follow the regulations, which have the force of law, and the regulations required not only the adoption of an antidiscrimination policy, which they have summary judgment establishing that they did, but a complaint procedure and publicizing that complaint procedure to the student body, and that is our principal and primary argument, that by failing to follow that regulation they created for themselves what the Fifth Circuit has now recognized as an absolute defense.

Anthony M. Kennedy:

Well, somewhat as in the last case, that this egregious criminal, outrageous conduct, everyone, including the student, would know that the board wouldn’t tolerate for a second.

Terry L. Weldon:

That’s true, but the testimony in the case was… from the student, she did not know… when the approaches by the teacher were merely verbal, in the form of insinuations and suggestions… he was beginning his concentrated campaign to seduce her.

She did not know… she did not… I’m sorry.

She did not know to whom she could turn.

She did not know that there were procedures that… she did not know that there was a complaint procedure, and she would have–

Anthony M. Kennedy:

But she’s not… that’s not… the gravamen of her complaint were not the initial overtures.

Terry L. Weldon:

–But if she had known that there was a complaint procedure… I mean, that was at that point, I would suggest to you, a mild form of sexual discrimination in the form of harassment because of the suggestive nature of the remarks.

If she had known about it she would have complained, she said, and if she had complained and effective action had been taken at that point, then her damages would be much different and basically we would not be in court at all, much less here.

Antonin Scalia:

She’s… how old was she at this time?

Terry L. Weldon:

She was 13 when she met the teacher.

He was… she was approximately 14 when he began making these… not approximately.

Terry L. Weldon:

She was 14 when he began making these suggestive remarks, and the relationship became physical before she became 15 and ended when she was 15.

Antonin Scalia:

And she didn’t know that there were people in positions of authority over the teacher to whom she could complain, like a school principal?

Did she know that the school principal–

Terry L. Weldon:

Of course she knew that.

Antonin Scalia:

–had authority over the teacher?

Terry L. Weldon:

Of course she knew that, but she didn’t know those people personally.

Antonin Scalia:

There were other girls who were also approached by this man and who did, indeed, take that course, didn’t they?

Terry L. Weldon:

And that is often going to be the case.

There are often going to be parents who had the initiative to go and–

Ruth Bader Ginsburg:

Well, she didn’t tell her parents.

Terry L. Weldon:

–I beg your pardon?

Ruth Bader Ginsburg:

That’s… in the one case the children told their parents what had been said by the teacher.

The… I take it that this girl’s parents did not go what was going on–

Terry L. Weldon:

That is correct.

Ruth Bader Ginsburg:

–until they were caught in the act, so… it’s not so clear to me that the best policy in the world would have been used by this young woman, but suppose there… one of the things you complain about is that there was kind of this nebulous policy.

You didn’t know who was the right person to complain to.

Suppose there was just the right kind of policy, the kind that NEA describes in its brief, and yet the same thing went on, would the school district be liable if it made its best efforts to have as clear a policy and as clear an identification of the person in charge of implementation?

Would that have made any difference?

Terry L. Weldon:

Yes.

It makes a big difference.

But I suggest to you… and here’s one of the reasons that it… that the text, or rather the context of Title IX, the schools dealing with students of all ages, is important… an important consideration.

It would make a big difference the older and more sophisticated the student was toward imposing on her a duty to utilize the complaint procedures, but if you’re talking about a 7 or 8-year-old, as, for example, was considered by the Fifth Circuit in the case called Canutillo, then you have obviously completely different considerations.

Ruth Bader Ginsburg:

Well, let’s take this case, and she’s 14 and 15, and they do have… they’ve done the best job that they can with putting a policy in place, telling the students about it, telling the teachers about it, identifying the right official to call.

Terry L. Weldon:

And may I also assume in my answer to you that there’s no thing so flagrant about the behavior of the teacher and student that a reasonable person would become suspicious.

Ruth Bader Ginsburg:

No, I’m taking this case, and the only thing that I’m changing… see–

Terry L. Weldon:

Yes.

Ruth Bader Ginsburg:

–one of the things you said, that the policy was very fuzzy, nobody knew who to call, or suppose we make it the best policy.

I wanted to know, as I asked in the last case, does it make any difference?

Terry L. Weldon:

It does make a difference, but because we are talking about 14’s and 15-year-olds, I think it makes less of a difference than it might for an adult in the workplace under Title VII.

David H. Souter:

Well, what’s the theory of the difference?

David H. Souter:

The theory of the difference is, the employer has done all that the employer could do, and therefore it would be unfair to impose liability on any theory?

Terry L. Weldon:

Well, that’s why it’s a harder case, but I would like to come back to say–

David H. Souter:

No, but you said it would make a difference, and I want to know what the theory of the difference is.

Terry L. Weldon:

–The theory of the difference is that you cannot expect even 14, 15-year-old girls to have the same presence of mind, the same degree of initiative, the same–

David H. Souter:

No, I understand that, but from the employer’s standpoint, once the employer has promulgated the perfect policy in the world–

Terry L. Weldon:

–Yes.

David H. Souter:

–you say it makes a difference, and is it because the employer has done all the employer can do, or is there some other theory?

Terry L. Weldon:

The other theory, and this would depend on, again, the factual context.

The other theory would depend on whether the sexual discrimination is at the hands of a teacher who is exploiting his educational control and authority over the student.

It would not lead to liability in a situation involving pure harassment, it would not lead to liability–

William H. Rehnquist:

I think you’ve answered the question, Mr. Weldon.

Thank you.

Terry L. Weldon:

–Thank you.

William H. Rehnquist:

We’ll hear now from you, Ms. Brinkmann.

Beth S. Brinkmann:

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

I think it’s important to focus on the court of appeals’ erroneous restriction in this case of the Court’s customary remedial powers that this Court recognized in Franklin to award all appropriate remedies in a case of sexual harassment discrimination under Title IX.

The court of appeals here held that damage awards would be appropriate only if a higher ranking employee knew of the harassment and failed to stop it.

The absence of explicit notice by a high ranking official should not automatically insulate the recipient from liability.

This is particularly true where, as here, the district did not have a policy to prohibit discrimination or a procedure for effective reporting of that.

Antonin Scalia:

Why shouldn’t we require that the district, in order to be liable, have a policy that permits discrimination, that affirmatively permits it?

The way the statute reads, it says no one shall be excluded from participation and be denied the benefits of or be subject to discrimination under any educational program or activity, not in connection with it, under, and I thought it was mainly directed at educational programs that allow sports for boys, no sports for girls, things of that sort.

That is discrimination under the program.

Beth S. Brinkmann:

Well, Your Honor, the–

Antonin Scalia:

In other words, why shouldn’t we apply the same kind of a test we apply in 1983 cases, that there has to be a policy of the school as far as private liability is concerned, a policy of discriminating?

Beth S. Brinkmann:

–Your Honor, the differences between Title IX and section 1983 demonstrate that that would not be an appropriate application.

First and foremost, the reasons underlying the 1983 standard, according to this Court’s opinions, are rooted in the text of section 1983 and its history, and the text of 1983 says any person who causes another to be… have their rights violated shall be subject to suit.

This text of Title IX is very different.

It is a condition on receipt of Federal funds.

A recipient receives those funds and knows that under that program and activity, under its programs and activities there cannot be a denial of admission, exclusion from the benefits of vacation, or discrimination under that program based on sex.

Antonin Scalia:

Right, and I think it’s reasonable to read that to mean, you know, in accordance with the policies of that program.

Beth S. Brinkmann:

Well–

Antonin Scalia:

You’re being discriminated against under the program if the program, by policy, does not treat you equally.

Beth S. Brinkmann:

–But Your Honor, a recipient… this school district, just like any other entity that… can only act through human agents, and any discrimination under its program activities is going to be carried out by its human agents, and there is no reason to deviate.

Antonin Scalia:

The same argument was made in 1983 and somehow we’ve stumbled through.

Beth S. Brinkmann:

But Your Honor, in addition to the text of section 1983, which is remarkably different from Title IX, there is also the history, and what led this Court–

Antonin Scalia:

I’m unsympathetic to your arguments based on the text of Title IX inasmuch as Title IX doesn’t even create a cause of action at all.

Beth S. Brinkmann:

–Well, Your Honor, as my colleague mentioned we’ve crossed that bridge and, in fact, acts by Congress since then have reinforced the breadth of Title IX and, as you… your concurrence in Franklin pointed out, Congress enacted a statute to abrogate Eleventh Amendment immunity, and there specifically refers to legal remedies.

Antonin Scalia:

And I accept all that, but we’re not in an area where we’re bound very tightly to the text.

Beth S. Brinkmann:

Your Honor, I think the other–

John Paul Stevens:

May I just ask you this question, and of course, in Cannon we held that Congress implicitly did intend a remedy.

We didn’t say a word about creating any elements of causes of action or substantive liability.

That isn’t made up.

That’s all what we thought Congress meant, and is there any difference between the standard that would be applied for revocation of funds under the congressional standard as implemented by regulations and the standard that should be applied here?

Beth S. Brinkmann:

–No, Your Honor, we don’t believe so.

What the Department of Education–

John Paul Stevens:

So you’re arguing that on these facts the funds could be revoked for this school district?

Beth S. Brinkmann:

–Yes, but I have to qualify that there is a statutory requirement placed on the Department of Education to make preliminary steps of voluntary conciliation because of the extreme nature of cutting off funds, and what the Court has recognized is that a private damage remedy stops short of that and also serves another function of Title IX, and that’s its remedial purpose.

We believe that when there’s a violation of Title IX, as this Court said in Franklin, the presumption is that all appropriate remedies apply and there’s no basis for restricting courts’ authority to do that.

And I just want to address the concern about the amount of damages that Justice Ginsburg brought up with that cap under Title VII.

First of all, I think it’s important to realize that there are other damages remedies that can be obtained against school districts… for example, Title VII… and there is now that cap, and there could certainly be a guidance for courts to look to, but along with the inherent power of courts to order remedies is often the inherent authority to remit damages.

We also would point out–

Sandra Day O’Connor:

Well, Ms. Brinkmann, I’m not sure we get to that question at all.

This is a spending, funding program of the Federal Government, and we have indicated that we think when States or local agencies accept money under a spending program it has to be clear what the conditions are, and what the liabilities would be in accepting that money, and we’re struggling in the preceding case with trying to figure out what the liabilities are under Title VII.

Beth S. Brinkmann:

–Your Honor–

Sandra Day O’Connor:

It certainly isn’t clear under Title VII.

How could it be possibly clear under Title IX to a school district what the liability might be?

I think you have a first step to take.

Beth S. Brinkmann:

–Your Honor, the concern underlying the Court’s opinions about Spending Clause statutes is notice to a recipient.

The language of Title IX is quite clear that discrimination that’s based on sex is prohibited, and in Franklin–

Sandra Day O’Connor:

Well, in programs and activities of the school.

Sandra Day O’Connor:

I think it speaks in terms of very broad concerns about schools that might not admit both sexes, or might not enable them to have physical education programs, or that discriminate in never hiring a teacher–

Beth S. Brinkmann:

–Your Honor, we would–

Sandra Day O’Connor:

–who’s a female, or something like that.

Beth S. Brinkmann:

–We urge, though, that actually the focus on the text of Title IX is broader than Title VII’s antidiscrimination prohibition.

Those concerns about admission policies and denying educational benefits, those are referenced in other clauses of Title IX in addition to prohibiting a person from being excluded from participation in, which would be an admission policy that the district level at the policy level would clearly be carrying out, or denying someone the benefits of an educational program.

There’s also the prohibition about… against being subjected to discrimination under a program or activity, and again, this is an entity that only can carry out its programs and activities through its agents, and there’s no justification to deviate from the normal background–

Yes, well, but–

Beth S. Brinkmann:

–principles for finding–

Anthony M. Kennedy:

–That’s true, as you’ve indicated with any corporate or fictional entity, but in this case the whole thrust of Title IX is that there must be a policy or program, and now you’re saying that the school can be held liable for something that it knew nothing about.

It seems to me that this is almost an a fortiori case, as suggested by Justice Scalia’s line of questioning, for a Monell type of requirement that the city or the school district has to have a policy that contradicts this program, and in this case it didn’t.

Beth S. Brinkmann:

–Well, Your Honor, the other reason, the only reason that the courts have given, other than the text of section 219(2)(d) for imposing that policy, was the history of the rejection of the Sherman amendment to the 1871 act, and that was… you’re looking at congressional intent and what Congress intended.

At the time that Title IX was enacted it could not possibly have been relying on the Monell standard because Monell was not decided.

In 1972, when Title IX was enacted, Monroe v. Pape was on the books, so there was no intent of Congress–

Anthony M. Kennedy:

But the point is, how do we make the implied right of action that we’ve invented parallel, consistent with the terms of the statute that’s being enforced–

Beth S. Brinkmann:

–I think it’s what the Court said in Franklin–

Anthony M. Kennedy:

–and it seems to me this is an easier case for excusing… for having a Monell type liability than 1983.

Beth S. Brinkmann:

–I think the task of this Court is to define congressional intent to the best it can, and in Franklin, recognizing the implied cause of action, it looked to the background principles against which Congress enacted Title IX, and that was the presumption of all appropriate remedies.

Congress could certainly take it upon themselves, as they did in other antidiscrimination statutes, to set a cap.

That would be a policy matter.

Would it depend, for example, on the number of employees, as the cap under Title VII does, or the amount of funds that the school receives, or the amount of… the size of the student population?

Those are matters for Congress, and here, relying on Cannon and Franklin, the Court has recognized that that presumption of all appropriate relief including damages, should apply under Title IX.

Ruth Bader Ginsburg:

But what about the issue of what kind of conduct on the part of the supervisory employer here, the teacher, holds the school district, and there I think you have a big difference between on the beach, open, everybody could see it, and here, where nobody knew.

Beth S. Brinkmann:

Well, Your Honor, it’s certainly not the actual knowledge standard that the court of appeals imposed.

At least it would be a knew or should have known standard, and that’s what the policy is about.

Ruth Bader Ginsburg:

But how could a school district ever know about something like this?

Beth S. Brinkmann:

In many ways, Your Honor.

They are educators.

Part of the problem is, to let students know about… other teachers knew about this that could have reported it if there had been a procedure in place, other students had heard about comments, there was the inadequate–

Ruth Bader Ginsburg:

So if they had a great policy, then there would be no liability.

Is that what–

Beth S. Brinkmann:

–That could be a very significant factor, and it may undermine theories of knew or should have known.

Certainly liability also may be a defense to an aided by theory, depending if the plaintiff had any other evidence that she brought forth.

William H. Rehnquist:

–Thank you, Ms. Brinkmann.

Beth S. Brinkmann:

Thank you, Your Honor.

William H. Rehnquist:

Mr. Jefferson, we’ll hear from you.

Wallace B. Jefferson:

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

Frank Waldrop’s acts were criminal in the State of Texas, forbidden by standards issued by the Texas Education Agency, repugnant to policies actually adopted by the Lago Vista Independent School District, and morally repulsive to everyone in this courtroom.

His conduct very properly landed him in jail.

Prior to his apprehension, Waldrop had managed to keep his sins concealed.

No one at the district was aware of these acts.

No one in the school administration knew about it.

No teachers knew about it.

There were no rumors among the teachers, or the faculty, or the staff.

There was no gossip.

All of the conduct we’re talking about here occurred off campus.

He did not physically touch her in the school, not once.

He did not use school facilities to accomplish his mission.

He did not engage in sexually explicit conversation on the campus.

No one but he and his victim knew of the child abuse until he was caught in the act, in public, by a police officer.

Anthony M. Kennedy:

Now, he used his position as a teacher, and it was a course in which she was one of the only or very few students, and some of this… the initial encounters, of course, occurred on the campus.

Wallace B. Jefferson:

Well, certainly their first introduction was in the context of the school setting, but that’s all you have.

That’s all you have.

I mean, the teaching role… it’s sort of like the first case, and I agree with the city in the first case.

What the teacher did here was criminal.

There is no way in the world that anyone could assume that he was acting within, any way within the scope of his authority, or that the district said, this is acceptable.

Now, Lago Vista’s reaction when it was first notified of this relationship was swift and severe.

The superintendent personally marched into the jail and delivered papers to the inmate, suspending him from any contact with the school.

As soon as the lawyers told him due process was satisfied, the superintendent then marched into the psychiatric hospital and gave him his termination papers.

Waldrop would not set foot in the Lago Vista school again, and well before it became an issue in this case, back in April of 1989, the district had adopted a policy forbidding sexual harassment by employees.

That’s at 420 of the record.

Wallace B. Jefferson:

And within months of this Court’s watershed opinion in Franklin, the school district adopted a policy stating expressly that district employees shall not engage in sexual harassment of students.

That’s at 417, and that was in 1992.

Now, the district’s policy of nondiscrimination, general policy of nondiscrimination like the statute provides was disseminated to the students and to the parents in the student teacher handbook.

That’s in the record at page 389.

Now, we understand why, in the briefing, and here this morning in oral argument, the petitioner would like to demonize the school district, but we are confident that when you look at the record it will not support that attempt.

The real question is whether Title IX requires the district to answer, in damages, for criminal conduct of an employee when the district lacks notice, actual or constructive, of the crime, and whether the district had any hint that its acceptance of a relatively nominal amount of Federal funds would potentially expose it to limitless actual and punitive damages, potentially, and we say no for several reasons.

John Paul Stevens:

Do you think the Government could have withheld funds in the future for the–

Wallace B. Jefferson:

Yes.

John Paul Stevens:

–You think they could have?

Wallace B. Jefferson:

Yes.

John Paul Stevens:

Therefore you are acknowledging the school district violated the statute and the regulation?

Wallace B. Jefferson:

I don’t think they could legitimately, but under their argument… under their argument this is a violation of Title IX.

John Paul Stevens:

Oh, no, I mean under your view of the law.

Wallace B. Jefferson:

Oh, no.

No.

No, because it’s not a violation of Title IX to begin with.

John Paul Stevens:

Do you think there’s a difference in standards between an attempt by the Government to withhold… revoke your funding on the one hand and a private damage action on the other?

Wallace B. Jefferson:

No.

I think the same standard’s going to have to apply to both.

Now–

Ruth Bader Ginsburg:

Do you know practically how often the cut off of funding has been used as distinguished from lesser remedies?

Wallace B. Jefferson:

–Justice Ginsburg, there is no evidence of that in the record, and I do not know personally what those statistics would hold.

Ruth Bader Ginsburg:

Because that’s a rather severe sanction.

Wallace B. Jefferson:

Yes, it is.

Ruth Bader Ginsburg:

And defeats the whole purpose of the funds.

Wallace B. Jefferson:

Indeed it does, and that leads to another point of the Spending Clause legislation.

Now, if… if, because some criminal, unbeknownst to anyone in the district… I mean, no rumors, no circulation of gossip or anything like that, is going to be cut off from Federal funds and subject to potentially unlimited damages… I mean, the verdicts in cases like these are… and it’s… there’s no reason… I mean, we know why they are.

They’re huge.

They’re in the millions of dollars.

Now, you take a school district like Lago Vista that had in the year that these activities were occurring about 646 students in the whole district, that’s accepting, what, less than… around $100,000 in Federal funds, whose whole budget is only about $1.6 million–

William H. Rehnquist:

Lago Vista is in Travis County, near Austin?

Wallace B. Jefferson:

–Yes, that’s correct, Your Honor.

Why would a district even accept the money, and that’s… the purpose of our bringing up the Spending Clause is, we need to know.

The districts around the country need to know that in exchange for receiving a nominal amount of Federal funds… a judgment could wipe out the whole district.

John Paul Stevens:

How much in Federal funds did you receive?

Wallace B. Jefferson:

It was about, approximately 120,000, $120,000 back in the 1992-’93 school year, and that’s in that… the… you can find it in the Texas Education Agency’s snap book, snapshot that’s in the National Association’s brief, and–

One–

Wallace B. Jefferson:

–in the public record in that year, in 1992-’93, the entire budget was only about $1.6 million.

David H. Souter:

–One answer possibly to the Spending Clause argument is that until there was some kind of an adjudication you didn’t know that there would necessarily be a private cause of action.

I think everybody accepts that.

Until there was some kind of an adjudication the district wouldn’t necessarily know what kind of primary liability would necessarily give rise to liability, what kind of primary action would give rise to liability.

But any school district is certainly deemed to know that because it acts through its employees, its liability, if there’s going to be liability, is going to be dependent on some sort of theories of imputed responsibility, and you did know that, and you didn’t know a court adjudication to tell you that you at least ran the risk of liability imputed on the usual principles of agency.

Wallace B. Jefferson:

I can agree with–

David H. Souter:

So what’s the answer to that?

Wallace B. Jefferson:

–Well, I can agree with that.

I mean, everyone knows that in districts, as with employment, you know, the corporation acts through its employees, the district acts through its employees, and there’s no question about that, so that yes, we did know that if there was going to be liability it would have to be routed somehow through the action of its employees.

Franklin is–

David H. Souter:

Well, is that an adequate answer, then, to your Spending Clause argument?

Wallace B. Jefferson:

–No.

David H. Souter:

In other words, you… we’re not at the point of asking whether there’s going to be a cause of action.

We’re not at the point of asking what kind of primary conduct on the part of an employee would give rise to liability.

We’re simply at the point of saying, how do you get from the employee’s action to the employer, and you say yes, we all understand that the agency relationship and the rules that define it will govern that liability.

Wallace B. Jefferson:

Well, if the rules that define it govern that liability, there is no liability here in an agency relationship context, because what was done here was a criminal act that was completely away–

David H. Souter:

Okay, but that’s not a Spending Clause argument.

That’s a–

Wallace B. Jefferson:

–Oh, it is.

David H. Souter:

–That’s an agency law argument.

Wallace B. Jefferson:

I believe it is a Spending Clause argument.

David H. Souter:

I don’t understand.

Wallace B. Jefferson:

Okay.

Wallace B. Jefferson:

I believe it’s a Spending Clause for this reason, and let’s compare this case to Franklin.

You know, Franklin is a case where the district… where the teachers and the staff and the administration knew that this conduct was going on, knew that sexual harassment was taking place.

This Court, I believe, held in Franklin that that is intentional conduct of the district itself.

Yes, they’re acting through employees.

I mean, they’ve got to act through employees, but when it became known to the district itself, no action was taken.

In fact, not only was no action taken to prevent it, action was taken to silence the victim in that case.

Well, that’s a case of intentional conduct, and in Guardians you said intentional conduct can make the district liable, even if it’s Spending Clause legislation, and so that’s the difference.

Here, there is no intentional conduct whatsoever.

There is no notice whatsoever to the district, and what the employee was doing, what this teacher was doing was a crime, was a… it should have landed him in jail, and it did land him in jail.

Antonin Scalia:

This saves your case very well, but what you’re saying with that test is that in the next case, when one coteacher knew about it, that’s enough.

Wallace B. Jefferson:

No, because I think that the… the… a coteacher wouldn’t satisfy the test of actual knowledge to the district.

Antonin Scalia:

Why?

The district has to act through its agents, you said.

Wallace B. Jefferson:

Well–

Antonin Scalia:

And the coteacher’s an agent.

Wallace B. Jefferson:

–It does, but in order to hold the district liable you’ve got to show that the district… in Franklin, the principal knew.

It wasn’t just the teachers, although they did, and they were trying to get this information to the principal.

The principal was taking it in and then conducting a fraudulent investigation, didn’t even look into it, so there you have someone at the level that the Fifth Circuit said would be responsible.

Anthony M. Kennedy:

Do you concede that we use agency principles, as we did in the last case, to determine when the district is liable under Title IX?

Wallace B. Jefferson:

I don’t have problems with the Court using some form of agency principles.

My problem is that the principles that they’re relying on, 219(2)(d) and this agency… and this aided in accomplishing, they just don’t apply here.

They have no application here whatsoever.

Anthony M. Kennedy:

When you say here, you mean to your case–

Wallace B. Jefferson:

To our case.

Anthony M. Kennedy:

–not to Title IX funding.

Wallace B. Jefferson:

To our case is what I’m saying, that’s correct.

Anthony M. Kennedy:

But you would have no… you would have no problem in our applying the agency Restatement principles–

Wallace B. Jefferson:

When I say–

Anthony M. Kennedy:

–to determine the district’s liability and to determine when they knew, including constructive knowledge?

Wallace B. Jefferson:

–Well, there is no such thing as constructive knowledge under Title IX to hold the district liable.

Wallace B. Jefferson:

That’s our position, and so agency wouldn’t work–

Anthony M. Kennedy:

Suppose I thought they were under agency law?

They I wouldn’t be applying agency principles to Title IX.

Wallace B. Jefferson:

–Then you’d be applying simply strict liability, and we say for sure, we say that this Court should declare that that’s not the test.

Strict liability is not the test and could not be the test, and the reason is, if you apply strict liability in a case like this, or in cases like these, not just ours, you’re going to run contrary to the whole purpose of Title IX.

We’ve all agreed this morning, at least in the briefs on their side and our side, that this is Spending Clause legislation, which means we’re talking about voluntary acceptance of Federal funds.

The district can either accept it or not.

If the district knows that as a result of accepting a few dollars in Federal funds its whole budget could go to one victim, and not to students at large in the district, well then the district’s not going to accept those funds–

John Paul Stevens:

But suppose–

–But you do know that now.

Wallace B. Jefferson:

–and then Title IX’s role in the educational process will be gutted.

John Paul Stevens:

Don’t you have to say that you do know that now, after Franklin, if your principal acted the way that the principal in Franklin did.

Wallace B. Jefferson:

If there’s intentional conduct by the district, yes.

John Paul Stevens:

So there is a risk that you might have liability greater than the amount of money you receive?

Wallace B. Jefferson:

Yes, but the district can say to itself, you know, we’re not going to intentionally sexually abuse a minor student, and we know that.

That’s not going to happen.

And so yes, they can take the funds with Franklin in mind.

But what they can’t do, and what they have no notice of, is if they take their funds, some janitor who does this is going to make the whole district liable, or some employee that the district has no notice of.

Anthony M. Kennedy:

Yes, but the only difference… the difference basically is the difference in the amount of risk.

The chances of having a Franklin type principal are low.

The chances of having a janitor doing something wrong are much higher.

I mean, that’s the distinction, isn’t there?

We’re will… you’re in effect saying, look, we’re willing to run the risk of a Franklin situation and still take the money.

Wallace B. Jefferson:

It’s not willing–

Anthony M. Kennedy:

We’re not going to be willing to run the risk of the janitor situation.

Wallace B. Jefferson:

–I… we… the district’s, and this district in particular is not willing to take the risk at all and is going to do everything it can to prevent that sort of thing from happening, including background checks and making sure that people it hires are great educators, so it’s not a matter of, well, we’re going to accept this risk because we know this thing’s going to happen.

It’s a matter of human nature.

This thing does happen.

It’s a terrible and it’s a repugnant and repulsive thing, but it happens in this country–

Antonin Scalia:

What about Title VII?

Wallace B. Jefferson:

–and the question is, do you–

Antonin Scalia:

Are you not liable for activity of this sort anyway under different provisions, 1983, or–

Wallace B. Jefferson:

–You could be.

Under 1983 you could be, if you meet the standards in Monell.

A school district like Lago Vista could certainly be, if it adopted some custom or policy that allows this to happen, or if there’s a pattern that it turns a blind eye to and lets it happen over a course of the year, a number of different times, there’s some sort of pattern to it, certainly there could be–

Stephen G. Breyer:

–Suppose that a teacher… suppose the school district receives a grant for a French program, and there are two or three students interested, and the teacher says, you know, I just don’t want to teach a woman.

I’ll teach the men, but I don’t want to teach a woman.

Is the school district liable?

I mean, they’d be horrified when they find out about it, but that’s just this teacher’s quirk, and–

Wallace B. Jefferson:

–Well, when they find out about it–

–Yes.

Wallace B. Jefferson:

–is the test.

Stephen G. Breyer:

Why… well, there’s one person who knows about it who is a school department official, who absolutely knows about it.

That’s the teacher.

Wallace B. Jefferson:

That’s not enough.

Stephen G. Breyer:

Why not?

Wallace B. Jefferson:

Because the teacher doesn’t have the authority to bind the district to any policy like that.

Stephen G. Breyer:

Well, the teacher decides who comes into, say, her class, if it’s a… I mean, doesn’t she?

Wallace B. Jefferson:

Yes, but once that decision is made, when the district hears about it… and certainly a complaint will be made in that situation.

When the district hears about it, if they do nothing, or if they try to cover it up like the district did in Franklin, then there’s liability.

But if it’s just one teacher in one class making that statement, no.

Stephen G. Breyer:

Suppose it happens to be the superintendent who on his own is teaching that class.

Wallace B. Jefferson:

If it’s the superintendent I think there’s liability.

I think that–

Stephen G. Breyer:

So you’re dividing it according to the rank of the person.

Wallace B. Jefferson:

–I am.

Stephen G. Breyer:

And is there… is there anything in the law that says the teacher is down there with the janitor, but the superintendent is up there with the Governor, I mean, or whatever, I mean–

[Laughter]

What is it in the law that creates that division?

Wallace B. Jefferson:

It’s going to be this Court.

Wallace B. Jefferson:

It’s–

[Laughter]

Stephen G. Breyer:

How… if it’s a–

Wallace B. Jefferson:

No–

Stephen G. Breyer:

–How are we supposed to decide that?

I mean, what’s the ground, then, for figuring that out?

I mean, how would we… I mean, what’s the key to that?

I had thought your answer, your answer to me was the law of agency, which surprised me a little bit.

I would think that you’d want something like a Monell policy rule.

Wallace B. Jefferson:

–What my answer is, and I think it… I think what the Fifth Circuit did was, a clear rule, a clear guide to the court and to the circuits, that are divided right now, is that the district will be liable if someone who has actual knowledge of the abuse was invested by the school board with the authority to supervise the employee and the power to take action to end the abuse and didn’t take that action, and failed to take remedial action.

I think that standard is the standard that could be applied.

Antonin Scalia:

It’s Monell like.

It’s a little less than Monell, isn’t it?

Wallace B. Jefferson:

It’s… it is Monell like, because it is sort of a deliberate indifference standard.

You’ve got someone at a level, a high up enough level that knows and has the discretion to make decisions.

William H. Rehnquist:

The only Monell case in which we talked about deliberate indifference was somewhat different than this.

The standard you propose now would be more favorable to a plaintiff than a straight Monell standard, would it not?

Wallace B. Jefferson:

It would, indeed.

Indeed it would, but it’s one that, you know, the Court is asking counsel here, what is the clear rule–

Antonin Scalia:

Well, you’re on the safe side of it, so it–

Wallace B. Jefferson:

–Yes.

Antonin Scalia:

–why ask for more than you need?

Wallace B. Jefferson:

That’s exactly right, Your Honor.

[Laughter]

I want to mention one additional point here, and the Solicitor General talks about, well, you know, let’s have this constructive knowledge standard, and I want to make a rather procedural point here.

That theory, constructive knowledge based on comments made to this teacher, by the teacher to other students in the past, that has been abandoned by the petitioner in this case.

I don’t even think it’s part of the case.

The district court found no evidence whatsoever of constructive knowledge.

The Fifth Circuit said they’re not complaining about constructive knowledge and there’s no evidence of it here anyway, and so we don’t have to address it.

John Paul Stevens:

Mr. Jefferson, will you help me out on one point?

John Paul Stevens:

I’m frankly a little mixed up on it.

It seems to me your opponent argued, or the briefs argued that the school district violated the regulations because it didn’t have an adequate policy in place, and if that were true, and if it conceivably would give rise to cut off of funds, why wouldn’t the failure to promulgate adequate regulations also justify a remedy in this case?

Wallace B. Jefferson:

If I can answer in this case–

Right.

Wallace B. Jefferson:

–If we’re talking about this case, the student here knew precisely what to do to stop this activity, and she testified… I–

John Paul Stevens:

Well, but now, stick with me on the… do you agree or disagree that there was a violation of agency… Federal regulations?

Wallace B. Jefferson:

–Well, I disagree in this sense.

Franklin was decided in 1992, and within months of that opinion, that’s when the district adopted a policy of saying, sexual harassment of students means this, and who… and here’s who you go to report to.

What I’m saying is–

John Paul Stevens:

Well, were those regulations in… was that policy in place at the time of the conduct here?

Wallace B. Jefferson:

–In part.

You know, in… the conduct began in the fall of 1992.

This Court’s opinion I believe was sometime during that fall of 1992, and then the policies were in place by October of 1992.

This conduct continued until January of 1993, so what I’m saying is, before–

John Paul Stevens:

Well, but is it true that some of the conduct preceded the regulation?

Wallace B. Jefferson:

–Yes.

John Paul Stevens:

Some did.

Wallace B. Jefferson:

Yes.

John Paul Stevens:

Now, what’s your response to… say you have a defense after the regulations went into effect.

What is your defense under the argument that I repeated to the pre regulation conduct.

Wallace B. Jefferson:

Before the regulations went into effect we had a policy of nondiscrimination, which is what Title IX requires, which was disseminated to the students.

After 1992, after this Court’s decision in Franklin, the world changed.

John Paul Stevens:

But did that pre Franklin policy comply with the Federal regulations?

Wallace B. Jefferson:

I… you know, I think there was… technically the answer is probably not, because it doesn’t say within 5 days you must report it, you know, a reported violation has to be, you know, submitted to a committee, and within 10 days a decision, so that sort of policy was not in place.

John Paul Stevens:

Then how relevant, if it is the fact that during a portion of the period there was a failure to comply with Federal regulations, how relevant, if at all, is that to the problem before us?

Wallace B. Jefferson:

I don’t think it’s… I don’t think it’s relevant and again, I must… the reason that I mentioned what the petitioner’s knowledge was was because a policy in this case would have made absolutely no difference.

Antonin Scalia:

Oh, I see.

It’s the causality element.

Wallace B. Jefferson:

There is a causality element, that’s right, in this case.

Antonin Scalia:

Had that policy made a difference, though, you agree that not having that policy in place would automatically make you liable?

Wallace B. Jefferson:

No.

I do not agree with that.

Antonin Scalia:

Well, you said before that you thought we had to apply the same standards for a violation of the funding regulations as we must apply for liability under the personal actions.

Wallace B. Jefferson:

Well, because the–

Antonin Scalia:

Do you believe that or not?

If so, when you violate the regulation you are automatically subject to suit and the only question is one of causality, which will usually have to go to the jury, I assume.

Wallace B. Jefferson:

–But then the question there would be funding, but it wouldn’t be the… it wouldn’t be bound up with the private cause of action for the petitioner in this case.

Yes, there could be a cessation of funding.

I don’t think it would happen.

I think in the real world they’re going to give… the agency’s going to give the district a chance of–

Antonin Scalia:

But it would be a jury question, wouldn’t it, whether… whether the–

Wallace B. Jefferson:

–The jury–

Antonin Scalia:

–failure to have the 5, 10-day, whatever it is, was a cause of the injury here, and if it was you’d be liable.

Wallace B. Jefferson:

–Number 1, I don’t think the jury would get this question to begin with–

Antonin Scalia:

Oh.

Wallace B. Jefferson:

–and number 2, I don’t think that the absence of a policy would make the district here liable for the criminal conduct of a teacher that the district knew nothing about.

Antonin Scalia:

Well, then you’re saying you don’t really think that we should apply the same standard for the cut off of funding that we apply for personal liability, or for–

Wallace B. Jefferson:

Well–

Antonin Scalia:

–you know, monetary liability.

Wallace B. Jefferson:

–Well, except your… the question to me doesn’t… doesn’t get into what happened here in this case.

I mean–

Ruth Bader Ginsburg:

The funding cut off isn’t automatic anyway.

I mean–

Wallace B. Jefferson:

–No.

Ruth Bader Ginsburg:

–there would certainly… there’d be a notice.

There’d be an opportunity to come into compliance.

Wallace B. Jefferson:

That’s correct.

Ruth Bader Ginsburg:

There’d be negotiation.

Wallace B. Jefferson:

That’s correct.

Antonin Scalia:

All of which are reasons why you wouldn’t want the same standard for the two, it seems to me.

Wallace B. Jefferson:

I–

Antonin Scalia:

The one is optional.

The other, you’re socked with a lawsuit, with no choice.

Wallace B. Jefferson:

–I take your point.

I mean, and it’s true, the… there is the possibility of compliance under Title IX.

If there’s… you know, it would be as if, as in Franklin, the complaint is made and the district does nothing about it.

If, under Title IX, the district is apprised of its noncompliance and does nothing about it, well then the severe sanction, you know, withdrawal of funding, would be appropriate.

But of course, you know, what would happen in that situation is the district would come into compliance or would just decide, no longer do we need Federal funds.

I mean, it would be their option.

And so again, I think under the facts of this case the… here, the absence of a policy makes no difference whatsoever.

Now, the other thing we need to talk about is, was this actually sexual discrimination under a policy, or under a program or an activity, and again, we say, and I’m mirroring some of the comments made in the argument before, no.

What happened here was a teacher who, to all intents and purposes was a good teacher, but who did a criminal act, who engaged himself in an act that was private, that was prurient, that was criminal, that could land him in jail and did land him in jail.

That is not in any way associated with any education program or activity.

Now, what counsel say on this side is, well, you’ve got this sort of… you’ve got this sort of program and it’s got to be implemented by agents, and the agent here was a teacher, and so therefore there’s liability.

But if we do go back to Title IX and the congressional intent, when you look at Title IX, what they’re talking about, Mr. Chief Justice, as you mentioned, is things like discrimination in funding of sports, or employment discrimination, you know, after a decision in this Court.

That sort of thing, which is always carried out by agents who have the discretion to hire and fire or to fund or not to fund, it’s always someone who has the sort of authority that we’re talking about who needs to be there before you can hold the district liable.

What happened, and what makes this case odd, is Franklin, and Cannon before it, you know, adopting a whole private cause of action and then this Court becoming in effect a legislature.

We keep coming back to the Court for new rules and new regulations… well, what about this, Your Honor, and what about that, Your Honor… because now the Court is sitting as Congress should have sat before, if it wanted to find this cause of action, this private cause of action.

The sort of agent that they contend is making the district liable is not proper, because the agent here is engaging in purely criminal activity.

If there are no further questions, we would ask that the Court affirm the judgment of the Fifth Circuit.

William H. Rehnquist:

Thank you, Mr. Jefferson.

The case is submitted.