CUMMINGS, Circuit Judge.

Appellee/cross-appellant Jane Doe was a student at University High School in Urbana, Illinois. Although University High is a public school, it is affiliated with the defendant University of Illinois, which has responsibility for overseeing the school's administration. During a period from January 1993 through early May 1994, while a student at University High, Jane Doe was the victim of an ongoing campaign of verbal and physical sexual harassment perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school (including two successive school Principals, a counselor, the Assistant Director, and the person appointed as intake officer for sexual harassment complaints) and the University of Illinois (including two Vice Chancellors, two University police officials, the Ombudsperson, and the liaison person between the University and the high school), but those officials allegedly did not do nearly enough to combat the harassment.

Because the sufficiency of Doe's allegations of sexual harassment is not at issue on this appeal, it is not necessary to describe in detail the campaign of harassment and intimidation to which she was subjected by the self-styled "posse" of male students. It is enough to note here that according to the Magistrate Judge's Report and Recommendations, the male students' conduct included unwanted touching, epithets, and the deliberate exposure of one student's genitals in front of Doe. Although school officials did suspend two of the male students for ten days and transfer one student out of Doe's biology class, Doe claims that the school and the University took little or no meaningful action to punish the sexual harassment or to prevent further occurrences. Indeed, the complaint alleges that some administrators suggested to Doe that she herself was to blame for the harassment, and that it was she who ought to adjust her behavior in order to make it stop. On one occasion, University High's Assistant Director told Doe and two of her friends to start acting like "normal females" and scolded them for making allegations of harassment that might injure some of the male students' futures. Ultimately, Jane Doe's parents removed her from the school as a result of the campaign of harassment and sent her to a private high school in another state.

On May 24, 1995, Doe and her parents filed this suit against the University of Illinois and various individual officials of University High and the University of Illinois. They alleged violations of 20 U.S.C. § 1681 et seq. (Title IX) and of 42 U.S.C. § 1983, and sought damages under the Illinois Family Expense Statute, 750 ILCS 65/15. After the plaintiffs voluntarily dismissed certain claims, Magistrate Judge David G. Bernthal entertained the defendants' motion to dismiss all of the remaining claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In a lengthy Report and Recommendations, he recommended that all of the remaining claims be dismissed. He further recommended that Jane Doe be granted leave to refile her claim against the University of Illinois for intentional sexual discrimination in violation of Title IX, but that all other claims be dismissed with prejudice.

In an order dated March 29, 1996, Chief Judge Mihm adopted the Magistrate Judge's Report and Recommendations and dismissed all claims, allowing Doe leave to refile her individual Title IX claim against the University.

On April 12, 1996, the University requested that the district court reconsider its decision to allow Doe to replead the Title IX claim, in light of the United States Supreme Court's decision in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, which had been made public on March 27, 1996. The University's motion for reconsideration asserted for the first time that the Title IX claim against the University was barred by the Eleventh Amendment to the United States Constitution, because Title IX did not validly abrogate the States' (and thus the University's) sovereign immunity from suit. The district court denied the University's motion for reconsideration on September 25, 1996, holding that both Title IX and the statute that expressly subjected States to suit for violations of Title IX were enacted at least in part pursuant to Congress' powers under Section 5 of the Fourteenth Amendment, and therefore that Congress validly abrogated the States' sovereign immunity with respect to Title IX suits.

The University appeals the district court's rejection of its Eleventh Amendment defense. Plaintiff Jane Doe also appeals the court's dismissal of her Title IX claim against the University pursuant to Federal Rule of Civil Procedure 12(b)(6). On Doe's motion, the two appeals were consolidated. For the reasons set forth below, this Court affirms the district court's holding with respect to the University's Eleventh Amendment defense and reverses the court's holding with respect to Jane Doe's Title IX claim.

I. THE ELEVENTH AMENDMENT IMMUNITY ISSUE

The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The University argues that it is immune from federal court suits under Title IX because it has not consented to such suits, and Congress has not validly abrogated its Eleventh Amendment immunity in the context of Title IX. The district court disagreed, holding in its denial of the University's motion for reconsideration that Congress, in enacting Title IX and rendering it enforceable against the States (via the Equal Rights Remedies Equalization Act ("Equalization Act"), 42 U.S.C. § 2000d-7), had unequivocally and validly abrogated the States' sovereign immunity with regard to suits under Title IX.

A. The Eleventh Amendment's Application to Federal Question Suits

Jane Doe argues in response to the University's immunity claim that the Eleventh Amendment does not give States immunity from federal question suits. Doe observes that the explicit text of the Amendment mentions only suits brought against a State by citizens of another State or of a foreign country. Based on this literal reading of the Amendment and a number of dissenting and concurring Supreme Court opinions, Doe urges this Court to hold that Eleventh Amendment immunity is not present in this case, which involves a federal question suit by a citizen of Illinois against the University of Illinois. Even were this Court inclined so to hold, however, it would not be free to do so. In Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1122, the Supreme Court reiterated its view that the Eleventh Amendment extends beyond its literal language to give the States sovereign immunity against all suits by individuals for damages. See id. at 1122 (citing Hans v. Louisiana, 134 U.S. 1); but see Seminole Tribe, 116 S. Ct. at 1137 (Stevens, J., dissenting) (arguing that Hans did not hold suits by citizens of the State to be sued barred by the Eleventh Amendment); id. at 1146 (Souter, J., dissenting) (stating that Hans was incorrectly decided and that the Eleventh Amendment bars only diversity suits against States). Doe's contention that the Eleventh Amendment does not apply in this case is therefore without merit.

B. Abrogation of Eleventh Amendment Immunity

Congress may abrogate States' Eleventh Amendment immunity if it both unequivocally expresses its intent to do so and acts pursuant to a valid exercise of power. Seminole Tribe, 116 S. Ct. at 1123. The University concedes, as it must, that Title IX and the Equalization Act, read together, unequivocally state Congress' intent to abrogate the States' Eleventh Amendment immunity, so the dispute centers around whether Congress acted pursuant to a valid exercise of power.

In Seminole Tribe, the Supreme Court held that the Indian Commerce Clause of the Constitution (art. I, § 8, cl. 3) does not give Congress the power to abrogate the States' Eleventh Amendment immunity. Id. at 1131. More broadly, the Court expressly overruled its prior decision that the Interstate Commerce Clause (art. I, § 8, cl. 3) did give Congress the power to abrogate. Id. at 1128 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1). The Court stated that the powers granted to Congress in Article I of the Constitution could not be used to expand federal court jurisdiction under Article III at the expense of the States' Eleventh Amendment immunity. Id. at 1132. The Court reaffirmed, however, the principle that Congress may abrogate the States' Eleventh Amendment immunity when it acts pursuant to Section 5 of the Fourteenth Amendment. Id. at 1125, 1128 (citing Fitzpatrick v. Bitzer, 427 U.S. 445). Because the Fourteenth Amendment was "adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution," it "operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment." Id. at 1128. When acting pursuant to its powers under Section 5 of the Fourteenth Amendment, therefore, Congress can abrogate the States' immunity from suit.

Neither the Supreme Court nor this Court has resolved the question of whether Title IX was enacted pursuant to Congress' Section 5 powers. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 n. 8 (declining to decide "which power Congress utilized in enacting Title IX"); Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1028 (7th Cir. 1997) (holding that "Title IX was passed pursuant to Congress' Spending Clause power" but not addressing possible alternative basis in Section 5). The district court in the present case held that Title IX, while it is undoubtedly an exercise of Congress' Article I Spending Clause power, was also enacted pursuant to Section 5 of the Fourteenth Amendment. The court further held that the Equalization Act, which expressly made the States subject to suits to enforce Title IX, "was clearly enacted pursuant to the Fourteenth Amendment." Relying upon this Court's decision in EEOC v. Elrod, 674 F.2d 601, 608 (7th Cir. 1982), the district court stated the standard for determining whether a statute was enacted pursuant to the Fourteenth Amendment as "whether the objectives of the legislation are within Congress' power under the amendment." The court then concluded that "since the objective of Title IX is to prevent discrimination based on sex in federally funded programs and preventing discrimination is central to Congress' power under the Fourteenth Amendment, . . . Title IX was also enacted pursuant to § 5 of the Fourteenth Amendment."

The University of Illinois asserts here that Seminole Tribe and other Supreme Court decisions compel this Court to overrule Elrod and hold that the proper inquiry is not whether the statute at issue is within Congress' power under the Fourteenth Amendment, but rather whether Congress in fact enacted the statute pursuant to that power. Because neither Title IX nor its legislative history unambiguously states that Congress intended to act pursuant to Section 5 of the Fourteenth Amendment, the University reads the Supreme Court's holdings in Pennhurst State School Hospital v. Halderman, 451 U.S. 1, and Gregory v. Ashcroft, 501 U.S. 452, as forbidding courts from inferring such an intent.

The University quotes at length from Gregory interpreting Pennhurst to hold that courts "should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment." Gregory, 501 U.S. at 469. The University argues that this principle from Pennhurst means that this Court should only find that Congress has enacted legislation pursuant to Section 5 when Congress has stated unambiguously that it intended to do so. This Court held in Elrod, however, that Pennhurst was inapposite to the inquiry into a statute's constitutional grounding in Section 5, primarily because it was a case involving statutory construction, rather than "congressional authority to legislate." Elrod, 674 F.2d at 608 n. 8. In other words, the question in Pennhurst was whether Congress intended a particular result, regardless of the constitutional grant of power under which it acted. In the present inquiry, by contrast, the intended result (of subjecting States to suit for violations of Title IX's substantive provisions) is clear, and the grant of power under which Congress acted is at issue.

Thus the University's reliance upon the Gregory Court's reading of Pennhurst to the effect that, "[b]ecause Congress nowhere stated its intent to impose mandatory obligations on the States under its § 5 powers, [the Court] concluded that Congress did not do so," is misplaced. What the Pennhurst Court held that Congress did not do was "impose mandatory obligations," not "[act] under its § 5 powers." The Supreme Court reached a similar conclusion in EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, where it held that Pennhurst was irrelevant "to the question of whether . . . Congress acted pursuant to its powers under § 5," because, in terms of the substantive obligations imposed by the statute, "there [was] no doubt what the intent of Congress was."

The University identifies in the Supreme Court's decisions an "increasingly strict view of congressional waivers of sovereign immunity." In support of this proposition, it cites Pennhurst, Gregory, and Seminole Tribe. The University's reliance upon the former two cases is curious, given that neither decided an issue of sovereign immunity. It is, on the other hand, clear that Seminole Tribe contracted Congress' power to abrogate the States' Eleventh Amendment immunity. Neither that case nor any other, however, compels this Court to abandon the analysis employed in Elrod. Indeed, other courts of appeals, in decisions reached after Seminole Tribe, have adhered to an analysis very similar to that in Elrod for determining whether Congress acted pursuant to its Section 5 powers.

In Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997), the Eighth Circuit explicitly held, as this Court does today, that Title IX was enacted pursuant to Section 5. Id. at 1283. In so deciding, the court articulated its inquiry as "whether Congress could have enacted the legislation at issue pursuant to a constitutional provision granting it the power to abrogate." Id. The court went on to state, "As long as Congress had such authority as an objective matter, whether it also had the specific intent to legislate pursuant to that authority is irrelevant." Id.

Similarly, the Sixth Circuit recently reaffirmed an earlier decision that the Equal Pay Act was enacted pursuant to Section 5. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838-839 (6th Cir. 1997) (citing Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 119 (6th Cir. 1978)). The court recognized that Congress made no explicit statement of the constitutional basis for its legislation, but held that "[i]t was not necessary for Congress to expressly rely on § 5 in exercising its power because such power clearly existed." Id. at 839 (citation omitted). The Sixth Circuit in Timmer confronted the same arguments the University raises in this case — that some combination of the Supreme Court holdings in Pennhurst and Seminole Tribe required a "clear statement" from Congress before a court could find that Congress acted pursuant to Section 5. The Sixth Circuit rejected those arguments, and this Court agrees with both its reasoning and its conclusion. See also Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997) (stating that for Eleventh Amendment abrogation purposes, "a statute is `appropriate legislation' to enforce the Equal Protection Clause if the statute `may be regarded as an enactment to enforce the Equal Protection Clause, [if] it is plainly adapted to that end and [if] it is not prohibited by but is consistent with the letter and spirit of the constitution'") (quoting Katzenbach v. Morgan, 384 U.S. 641, 651).

Aside from the decisions of other circuits utilizing an approach very similar to that in Elrod, there is nothing odd in the proposition that Congress may have acted pursuant to more than one of its sources of power in enacting a single piece of legislation. In Elrod itself, this Court observed that the statute at issue there, the Age Discrimination in Employment Act, "follows the familiar pattern of contemporary civil rights acts in grounding prohibitions against private parties in the Commerce Clause, while reaching government conduct by the more direct route of the Fourteenth Amendment." Elrod, 674 F.2d at 604; see also Fullilove v. Klutznick, 448 U.S. 448, 473 (finding that Congress used an "amalgam" of its powers in enacting minority business enterprise provision of Public Works Employment Act of 1977), overruled on other grounds by Adarand Constructors, Inc. v. Pena, 515 U.S. 200. It is equally sensible that Congress, in using federal educational funds as the core of Title IX, should use its Spending Clause powers to reach private actors and its Fourteenth Amendment powers to reach the States.

This conclusion answers the argument of the Fifth Circuit that Title IX's use of federal funds as a lever to insure compliance with its anti-discrimination objectives indicates that Congress could not have been acting under its Fourteenth Amendment powers. See Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 n. 14 (5th Cir. 1996) (noting that imposing Title IX liability on a school that receives federal but not State funds would "push the limits of the Fourteenth Amendment"), certiorari denied, 117 S. Ct. 165. A chronological perspective reinforces this view. It is not at all unlikely that Congress, perceiving the possible limits upon its Fourteenth Amendment power over non-State actors, initially chose to use its Spending Clause power to bind such actors to the requirements of Title IX. When Congress subsequently chose, via the Equalization Act, to make those same strictures more readily enforceable against State-run schools, it used the already existing federal funds framework of Title IX. Congress' consistent use of federal funds as the "trigger" for Title IX coverage, however, does not mean that it did not also intend to act pursuant to its acknowledged powers over State actors granted by Section 5 of the Fourteenth Amendment. The Fifth Circuit's approach would turn a purely efficient decision to utilize an existing statutory scheme into a declaration that the Fourteenth Amendment was not involved in an enactment that, at least as it applies against the States, is squarely within the purview of that Amendment.

This Court, therefore, reaffirms the analysis we used in Elrod and applies it here. The appropriate question is, were "the objectives of [Title IX] . . . within Congress' power under the [ Fourteenth] amendment?" See Elrod, 674 F.2d at 608. The answer is, quite plainly, that they were. As the court below noted (quoting Cannon v. University of Chicago, 441 U.S. 677, 678), protecting Americans against "invidious discrimination of any sort, including that on the basis of sex," is a central function of the federal government. Prohibiting "arbitrary, discriminatory government conduct . . . is the very essence of the guarantee of `equal protection of the laws' of the Fourteenth Amendment." Elrod, 674 F.2d at 604. Title IX prohibits such discriminatory government conduct on the basis of sex when it occurs in the context of State-run, federally funded educational programs and institutions. This Court holds, therefore, that Congress enacted Title IX and extended it to the States, at least in part, as a valid exercise of its powers under Section 5 of the Fourteenth Amendment. For that reason, Congress validly abrogated the States' Eleventh Amendment immunity from suit when it passed the Equalization Act expressly making States subject to suits to enforce Title IX.

In light of the foregoing conclusion that Congress validly abrogated the States' immunity, it is unnecessary to resolve Jane Doe's alternative claim that the University affirmatively waived its Eleventh Amendment immunity by choosing to accept federal funds under Title IX.

II. THE TITLE IX ISSUE [26] A. Standard for Reviewing Motion to Dismiss

In reviewing a grant of dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, this Court must take as true all factual allegations in the plaintiff's pleadings and draw all reasonable inferences in her favor. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995). Such a motion may be granted only if it appears beyond a doubt from the pleadings that the plaintiff is unable to prove any set of facts that would entitle her to relief. Moss v. Healthcare Compare Corp., 75 F.3d 276, 279 (7th Cir. 1996). We review the district court's grant of a motion to dismiss de novo. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 419 (7th Cir. 1994).

B. Title IX Background

Title IX provides that "[n]o 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 education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681. As noted in Part I above, the Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d-7(a)(1), expressly made the States subject to suits to enforce the guarantees of Title IX.

It is well settled that sexual harassment of a student in a federally funded educational program or activity, if it is perpetrated by a teacher or other employee of the funding recipient, can render the recipient liable for damages under Title IX. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 63-64, 76; Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1021 (7th Cir. 1997). What is less clear, and what is before this Court today, is whether a school (or other educational fund recipient) can be liable for failing to take prompt, appropriate action to remedy known sexual harassment of one student by other students. Three courts of appeals have considered the question, with two finding no liability, see Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th Cir. 1997) (en banc); Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir. 1996), certiorari denied, 117 S. Ct. 165, and one finding such liability if the school knew or should have known that the harassment was occurring, see Brzonkala v. Virginia Polytechnic Inst. State Univ., 132 F.3d 949 (4th Cir. 1997). Further, a number of district courts have found such liability to exist under Title IX. See, e.g., Doe v. Londonderry Sch. Dist., 970 F. Supp. 64, 74 (D.N.H. 1997); Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1377 (N.D. Cal. 1997); Bruneau v. South Kortright Cent. Sch. Dist., 935 F. Supp. 162, 173 (N.D.N.Y. 1996); Wright v. Mason City Community Sch. Dist., 940 F. Supp. 1412, 1419-1420 (N.D. Iowa 1996); Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, 1023 (W.D. Mo. 1995).

The district court in the present case, ruling without consideration of any court of appeals decisions on the issue, held that the University could be liable for failing to take action to address Doe's harassment, but only if Doe alleged (as the court believed she had not done) that school and University officials' failure to respond "resulted from the University's sexual discrimination against her." In other words, the court held that the University's allegedly intentional failure to act in the face of knowledge of the sexual harassment was not sufficient to sustain Title IX liability; in the court's view, Doe needed to allege that the failure arose out of an intent by the University to discriminate on the basis of sex.

For reasons set forth below, this Court holds that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student sexual harassment that takes place while the students are involved in school activities or otherwise under the supervision of school employees, provided the recipient's responsible officials actually knew that the harassment was taking place. We reject the district court's further requirement that plaintiffs in such cases plead or prove that the recipient, or any of its officials, failed to respond as a result of sexually discriminatory intent. The failure promptly to take appropriate steps in response to known sexual harassment is itself intentional discrimination on the basis of sex, and so, once a plaintiff has alleged such failure, she has alleged the sort of intentional discrimination against which Title IX protects.

C. Title IX Liability

Because today's holding is inconsistent with the decisions of two of the three other courts of appeals that have directly addressed the issue, it is appropriate that this Court should explain the grounds for its disagreement with those decisions. The Fifth Circuit in Rowinsky, 80 F.3d at 1006, held that a school's alleged failure to respond sufficiently to sexual harassment of a student by other students could not incur liability under Title IX. The court considered the pertinent question to be whether the school could be held liable for the acts of third persons (the harassing students) who were not its agents. See id. at 1011 (noting that when a student is the harasser, "a theory of respondeat superior has no precedential or logical support"); id. at 1012 (stating that Title IX's language "does not support an inference that the statute applies to the conduct of third parties" and noting factors that weigh in favor of imposing liability "only for the acts of grant recipients").

As a result of this analysis, the Rowinsky court concluded that the only way in which the plaintiff could state a cause of action under Title IX based on sexual harassment by other students would be by showing "that the school district responded to sexual harassment claims differently based on sex" by, for instance, "treat[ing] sexual harassment of boys more seriously than sexual harassment of girls." Id. at 1016. Such a showing, the court believed, would be sufficient to show that the school itself discriminated on the basis of sex in its response to the complaints.

With respect, the Fifth Circuit's analysis fundamentally misunderstands the nature of the claim that plaintiffs in this kind of case advance. See Doe v. Petaluma City Sch. Dist. (Petaluma II), 949 F. Supp. 1415, 1421 (N.D. Cal. 1996). Jane Doe does not ask that the defendant be held liable for the acts of the harassing students; rather, she asks that it be held liable for its own actions and inaction in the face of its knowledge that the harassment was occurring. Were Doe in fact requesting that the harassing students' actions be imputed to the University under agency principles, then her claim would be properly dismissed. See Smith, 128 F.3d at 1034 ("Agency principles . . . cannot impute discriminatory conduct of an employee to the `program or activity'" under Title IX.). Instead, Doe alleges that responsible school and University officials knew of the harassment and failed to take measures to address it. "Thus, [the alleged] institutional liability rest[s] on the institution's actions" rather than those of the harassers. Id. at 1022 (discussing Franklin, 503 U.S at 60). The Fifth Circuit's agency-based analysis, therefore, does not resolve the issue.

Moreover, the Rowinsky court's demand that a plaintiff such as Jane Doe, in order to state a Title IX cause of action, allege and show that the school reacted differently to sexual harassment claims made by girls and boys misunderstands sexual harassment itself. This Court has noted in the Title VII context that the arguments underpinning the Rowinsky requirement "interpret sex discrimination in too literal a fashion." McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996). As we recognized in that case, occasional exceptions do not alter the rule that sexual harassment is an evil that affects mostly women and girls. For this reason, it must be exceedingly rare that a school receives any complaints of sexual harassment from its male students. The Fifth Circuit's rule would leave schools completely free to ignore the more frequent complaints of sexual harassment from girls, while imposing only the minimal cost that such schools would be required likewise to ignore any complaints they might receive from their male students. See Petaluma II, 949 F. Supp. at 1421.

1. The Eleventh Circuit's Spending Clause Analysis

Apparently recognizing these fatal flaws of the Rowinsky opinion, the Eleventh Circuit in its en banc opinion in Davis took care not to characterize the issue as one of liability for the acts of third parties. It also did not echo the dictum that a plaintiff could only state a claim by showing differential treatment of complaints by boys and girls. The court properly recognized that the school's allegedly discriminatory conduct lay in "fail[ing] to take measures sufficient to prevent a non-employee from discriminating against [the plaintiff]." Davis, 120 F.3d at 1401. With this understanding, the court proceeded to analyze whether a school could properly face Title IX liability for such a failure.

The Davis court began by finding that Title IX was enacted pursuant to the Spending Clause of the Constitution (art. I, § 8, cl. 1). See id. at 1398. From that premise, it next concluded that the proper inquiry to determine whether the school could be held liable was "whether Congress gave the [school] Board unambiguous notice that it could be held liable for failing to stop [the] harassment." Id. at 1399. This Court held in Part I above that Congress enacted Title IX and applied it to the States pursuant to its powers under both the Spending Clause and Section 5 of the Fourteenth Amendment. While the Eleventh Circuit's approach is certainly relevant, it is not sufficient to conclude the inquiry.

In its Spending Clause analysis, the Eleventh Circuit correctly observed that "[w]hen Congress enacts legislation pursuant to the Spending Clause, it in effect offers to form a contract with potential recipients of federal funding." Id. (citing Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 17). As a general matter, the result of this contractual analogy is that "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Pennhurst, 451 U.S. at 17. In light of this requirement, the Eleventh Circuit inquired whether the defendant school board had been unambiguously put "on notice" that it might be liable for failing to respond to sexual harassment that it knew was taking place.

By relying upon the unambiguous statement rule of Pennhurst, the Eleventh Circuit ignored a more recent Supreme Court holding on the matter. In Franklin, 503 U.S. at 74-75, the Court held that where the discrimination alleged to have violated Title IX is intentional, the "notice problem does not arise." See Davis, 120 F.3d at 1414 (Barkett, J., dissenting). Title IX, the Supreme Court held, placed on schools the duty not to discriminate on the basis of sex; when a school violated that duty, it could be held liable despite the fact that the Court had not previously imposed a similar remedy for the kind of Title IX violation at issue. See Franklin, 503 U.S. at 75 (holding monetary damages remedy against school district appropriate where school officials knew about teacher's sexual harassment and abuse of student).

In the case before the Court today, Jane Doe alleges that University High's failure or refusal to take prompt and appropriate action in response to her complaints of sexual harassment was intentional sexual discrimination. In other words, the allegation assumes that the combination of knowledge that sexual harassment is occurring in activities under the school's control and intentional failure to take prompt, appropriate action (such as investigation and, if warranted, disciplinary measures) is presumably, perhaps even necessarily, a manifestation of intentional sex discrimination. See Smith, 128 F.3d at 1028 (noting that "a School District or School Board that `knew' and failed to respond to sex discrimination would act with the intent required to suffer a monetary judgment under the Spending Clause"); id. at 1042 (Coffey, J., concurring) (same). After all, what other good reason could there possibly be for refusing even to make meaningful investigation of such complaints, as Jane Doe alleges University High officials did in this case?

School and University officials were unquestionably aware that Title IX subjected the school to liability for intentionally discriminating against or denying educational benefits to students on the basis of sex. There is also no question that the campaign of harassment that Doe alleges was sufficient to deny her the full benefit of her education and subject her to discrimination at the school. If, as alleged, school and University officials knew about the harassment and intentionally failed, and indeed flatly refused in some instances, to take steps to address it, then the plea that the institution was not "on notice" that such failure could subject it to Title IX liability rings hollow.

2. Fourteenth Amendment Analysis

Part I of this opinion held that Congress enacted Title IX and extended it to the States in part pursuant to Section 5 of the Fourteenth Amendment. In so holding, this Court concluded that the Supreme Court's admonition in Pennhurst against "quickly attribut[ing] to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment," Pennhurst, 451 U.S. at 16, was not pertinent to resolving the question under which of its powers Congress acted in passing and extending Title IX. The warning in Pennhurst is, however, most certainly relevant to the present inquiry, which is whether Title IX imposes upon recipients liability for certain types of actions or inactions.

In Pennhurst, the Supreme Court declined to conclude that Congress, in passing the Developmentally Disabled Assistance and Bill of Rights Act, had intended to use its Section 5 powers to impose an obligation on States to provide and pay for certain kinds of treatment to the mentally disabled. Id. at 15-17. The Court noted that previous cases in which it had found that Congress did create rights and obligations pursuant to Section 5 involved express articulations of intent by Congress. Id. at 16. The Court further stated that "[t]he case for inferring intent [to create enforceable rights] is at its weakest where . . . the rights asserted impose affirmative obligations on the States to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States." Id. at 16-17. The Court contrasted such impositions of affirmative obligations with statutes that "simply prohibit certain kinds of state conduct." Id. at 16; see Illinois Dep't of Public Aid v. Sullivan, 919 F.2d 428, 434 (7th Cir. 1990) (finding that Pennhurst did not bar imposition of prohibitions on State, in part because "[t]he regulations in question . . . imposed no new, affirmative obligations on [the State]").

The right Jane Doe asserts in this case would impose no affirmative funding obligations on the States. It would merely prohibit States, in their capacity as administrators of educational programs receiving Title IX funds, from failing to respond to sexual harassment that they knew was occurring. Cf. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 840-841 (6th Cir. 1997) (inferring intent to enact Equal Pay Act pursuant to Fourteenth Amendment powers in part because it "simply prohibit[s] certain kinds of state conduct," rather than imposing financial obligations).

In any event, this Court does not read Pennhurst to stand for the proposition that Congress may never impose duties upon the States pursuant to Section 5 of the Fourteenth Amendment in the absence of a clear, unambiguous statement that it is imposing those precise duties. Clarity in legislative drafting is a goal to which this Court willingly subscribes. Congress need not, however, spell out in advance every situation to which it wishes a statute to apply. As we observed nearly a decade and a half ago, the question of whether Congress created enforceable rights in the first instance is very different from questions concerning "the scope and interpretation" of those rights. American Hosp. Assoc. v. Schweiker, 721 F.2d 170, 183 (7th Cir. 1983) (upholding community service and uncompensated care requirements imposed on federally funded hospitals by Department of Health and Human Services regulations pursuant to Hill-Burton Act), certiorari denied, 466 U.S. 958. This Court noted in Schweiker that the defendant hospitals conceded that the statute created enforceable obligations; only the scope of the obligations was at issue. See id. Similarly, no party to the present case could seriously dispute that Title IX imposes obligations upon schools that receive federal funds to avoid discrimination on the basis of sex, or that students such as Jane Doe may sue to enforce those obligations. The issue is whether those obligations' scope is wide enough to include the kind of liability Doe seeks to impose. Pennhurst is not a bar to inquiry into that question. If the language and history of Title IX and its extension to the States fairly support liability under the theory Jane Doe advances, then this Court may conclude that Congress acted pursuant to Section 5 of the Fourteenth Amendment to impose such liability.

In its Spending Clause inquiry, the Eleventh Circuit looked primarily to the express terms and legislative history of Title IX. Finding no mention in the legislative history of student-on-student sexual harassment "or the related issue of school discipline," Davis, 120 F.3d at 1397, the court concluded that schools were not "on notice" that they might be held liable for failing properly to address sexual harassment by students, id. at 1401.

Although we have concluded herein that Title IX is not exclusively a Spending Clause enactment (and that the notice issue does not arise, given the intentional nature of the discrimination alleged), the Davis court's analysis of whether the statute imposes liability provides a starting point for our Fourteenth Amendment inquiry. Unfortunately, the Eleventh Circuit made the mistake of focusing too narrowly on the statute and the legislative history, ignoring both case law and the meaning attached to Title IX by the federal agency responsible for its enforcement. As the dissenting judges in Davis observed, the language and legislative history of Title IX do not deal with teacher-on-student sexual harassment, any more than they do student-on-student harassment. See id. at 1413-1414 (Barkett, J., dissenting). Yet the Supreme Court has explicitly recognized that Title IX creates a cause of action based upon teacher-on-student sexual harassment. See Franklin, 503 U.S. at 60.

Indeed, the very principle that Title IX confers a private right of action for any sort of violation was not explicit in the text or legislative history; it became law only when the Supreme Court decided that Title IX implied such a right of action. See Cannon v. University of Chicago, 441 U.S. 677, 688-689; see also Franklin, 503 U.S. at 71 (noting that, given fact that right of action was inferred by Court in Cannon, prior legislative history and statutory text were not helpful in deciding whether money damages were available). This Court must, therefore, look to judicial decisions to help it determine whether Title IX imposes liability for the University's failure to address appropriately sexual harassment by its students.

The Supreme Court has declared that Title IX is to be given "a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521. That language, in turn, speaks in terms of safeguarding individual students' rights: "No person . . . shall be excluded . . ., be denied . . . benefits . . ., or be subjected to discrimination . . . ." 20 U.S.C. § 1681. As the dissenting judges in Davis pointed out, "[t]he absolute prohibition contained in the text is framed solely in terms of who is protected." Davis, 120 F.3d at 1412 (Barkett, J., dissenting). Giving this statutory language the "broad sweep" required by North Haven certainly supports the proposition that a school may be liable for refusing to act upon its responsibility to operate a program in which all persons are free from the kind of exclusion and discrimination the statute forbids.

Beyond interpretation of the statutory language itself, however, federal courts look to cases decided under Title VII to inform analysis under Title IX. See, e.g., Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir. 1994); Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-897 (1st Cir. 1988); Mabry v. State Bd. of Community Colleges Occupational Educ., 813 F.2d 311, 316 n. 6 (10th Cir. 1987), certiorari denied, 484 U.S. 849. Although Title VII is most closely analogous to Title IX actions involving discrimination against educational employees, see Preston, 31 F.3d at 206, Title VII cases are also helpful in addressing other claims of sexual discrimination under Title IX. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248-249 (2d Cir. 1995) (applying Title VII analysis to student's Title IX claim against school involving sexual harassment by teacher). The very definition of sexual harassment that is implicit in this discussion and that of the other courts that have addressed it in the educational context comes from Title VII. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67 (defining actionable sexual harassment under Title VII). The Supreme Court, in recognizing that sexual harassment of students by teachers could give rise to a Title IX cause of action against the school, cited Meritor, a Title VII case. See Franklin, 503 U.S. at 75. Broadly speaking, there is no reason why students such as Jane Doe should be afforded a lesser degree of protection against such "hostile environment" discrimination than adult workers in the employment setting regulated by Title VII.

This Court recently held that, because of differences in the language and history of Title IX and Title VII, cases decided under the latter should not be construed to impose Title IX liability upon schools for the acts of their employees on the basis of agency principles. See Smith, 128 F.3d at 1034. Jane Doe's argument in this case uses Title VII cases for a different purpose, however — to support the conclusion that schools may be held directly liable under Title IX for their own failure to respond appropriately to sexual harassment of which they have actual knowledge. Such failure, Doe contends, renders the University directly liable for its own intentional discrimination on the basis of sex. Thus the holding in Smith that Title VII agency-based principles do not apply in Title IX cases does not preclude our use of Title VII precedents here.

One problem with borrowing so liberally from Title VII law in interpreting Title IX may be that under Title VII prospective litigants are required to proceed through a federal administrative agency, the Equal Employment Opportunity Commission (EEOC), before filing suit in federal court. See Patterson v. McLean Credit Union, 491 U.S. 164, 180. This requirement is intended to promote the resolution of unlawful employment practice claims "through conciliation rather than litigation." Id. Because no comparable administrative review mechanism exists for suits filed under Title IX, one might infer that Congress did not contemplate that courts would recognize as broad a range of causes of action under Title IX as under Title VII. Perhaps the absence of agency review means that this Court should not look to Title VII cases to inform its analysis of Jane Doe's Title IX claim.

On the other hand, private citizens have possessed a right to bring suit under Title IX for over eighteen years. See Cannon, 441 U.S. at 688-689. For at least five of those years, students have had a cause of action against schools based on sexual harassment by school employees. See Franklin, 503 U.S. at 63-64, 76. As noted above, for much of that time courts, including the Supreme Court, have been using Title VII precedent in analyzing Title IX suits. In all those years, Congress has not seen fit to institute a requirement of administrative review or conciliation for private suits under Title IX. Yet nothing indicates that the federal courts have seen an overwhelming flood of such suits. Nor does the species of Title IX liability for which Jane Doe asks in this case threaten to produce such a flood. Courts are free to use the means provided by Federal Rules of Civil Procedure 12 and 56, among others, to dispose of suits that lack merit. Congress, for its part, is free to impose a requirement comparable to the one under Title VII if it so desires. The absence of an administrative review requirement does not discourage the use of Title VII precedents in cases under Title IX.

Under Title VII standards, "an employer who has reason to know that one of his employees is being harassed in the workplace by others on grounds of race, sex, religion, or national origin, and does nothing about it, is blameworthy." Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422 (7th Cir. 1986). So long as the harassment is such that "the employer could have prevented [it] by reasonable care in hiring, supervising, or if necessary firing the [harasser]," the employer is "directly liable (that is, independently of respondeat superior)." Id. Translated to the Title IX setting, this standard would mean that the University is liable for harassment by its students, regardless of the fact that students are not agents of the school, so long as it knew or had reason to know about the harassment and could have prevented some or all of it by taking appropriate action in response. The absence of an agency relationship is simply irrelevant, given our holding that the liability Jane Doe seeks is direct, rather than agency-based. Although we do not adopt, for the reasons given in Smith, 128 F.3d at 1028-1029, the Title VII "knew or should have known" standard articulated in cases such as Hunter, we do borrow that case's theory of direct liability.

This view of Title IX liability also takes into account the interpretations of the Department of Education's Office of Civil Rights (OCR), the federal agency charged with enforcing Title IX. Although OCR's interpretation of Title IX is not entitled to strict deference from this Court, see id. at 1033-1034, it merits our consideration. The OCR's final policy guidance on the matter states:

[A] school's failure to respond to the existence of a hostile environment within its own programs or activities permits an atmosphere of sexual discrimination to permeate the educational program and results in discrimination prohibited by Title IX. Conversely, if, upon notice of hostile environment harassment, a school takes immediate and appropriate steps to remedy the hostile environment, the school has avoided violating Title IX. Thus, Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.

Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,039-12,040 (1997).

The Eleventh Circuit's opinion in Davis ignored this policy statement (although Judge Tjoflat addressed it in a footnote to the portion of the opinion that is his alone, see Davis, 120 F.3d at 1404 n. 23 (noting that the guidelines "issued after the alleged harassment" in the case)). It is certainly relevant that the OCR's final Guidance had not been issued at the time the harassment was taking place. The Guidance, however, reflects longstanding OCR policy, as demonstrated by official Letters of Finding dating as far back as 1989. The Fifth Circuit in Rowinsky determined that such Letters are not entitled to deference, as they "are promulgated during investigations of specific institutions, and their purpose is to compel voluntary compliance by an offending institution." Rowinsky, 80 F.3d at 1015. Where, as here, the Letters of Finding consistently indicate that, in the words of one of them, "[a] district which is aware that its students are being subjected to sexual harassment has a duty under Title IX to take prompt and effective action to stop it," Letter of Finding of John E. Palomino, Regional Civil Rights Director, Region IX (May 5, 1989), Docket No. 09-89-1050, there is no reason not to consider the Letters as evidence that the later Policy Guidance did indeed reflect long-existing OCR policy.

It is clear, then, that Title VII case law and the interpretations of the responsible federal agency support the imposition of Title IX liability for the University's failure to respond promptly and appropriately to the sexual harassment of Jane Doe. Furthermore, imposing such liability best serves the anti-discrimination goal that Congress indisputably had in mind when it enacted Title IX and made it binding upon the States. Accordingly, this Court holds that Title IX does make schools liable for failure to respond promptly and appropriately to known student-on-student sexual harassment.

In holding that schools have a duty to take prompt and appropriate action to remedy student-on-student sexual harassment, this Court does not imply that schools must be successful in completely eradicating sexual harassment from their campuses and programs. School officials faced with knowledge of sexual harassment must decide how to respond, but their choice is not a binary one between an obviously appropriate solution and no action at all. Rather, officials must choose from a range of responses. As long as the responsive strategy chosen is one plausibly directed toward putting an end to the known harassment, courts should not second-guess the professional judgments of school officials. In general terms, it should be enough to avoid Title IX liability if school officials investigate aggressively all complaints of sexual harassment and respond consistently and meaningfully when those complaints are found to have merit.

D. Proper Standard for Notice that Harassment is Occurring

The holding that a school can be liable for failing to respond appropriately to sexual harassment makes it necessary to determine what constitutes sufficient notice to the school that such harassment is taking place. One court of appeals and one district court, borrowing from the Title VII context, have held that a school is liable for failing properly to address harassment that it actually knew or should have known was occurring. Brzonkala, 132 F.3d at 949; Petaluma II, 949 F. Supp. at 1427. Several other district courts, in contrast, have adopted a standard that requires plaintiffs to allege and prove that the school officials actually knew of the harassment (rather than that they should have known). See Londonderry Sch. Dist., 970 F. Supp. at 74; Bruneau, 935 F. Supp. at 173; Wright, 940 F. Supp. at 1419-1420; Bosley, 904 F. Supp. at 1023.

In Smith, this Court rejected Title IX liability for teacher-on-student sexual harassment based on a "knew or should have known" standard and adopted instead a requirement of actual knowledge. Smith, 128 F.3d at 1034 (holding that school district can be liable "only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so") (quoting Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir. 1997)). We see no reason to adopt a different standard for cases, such as this one, in which the alleged harassment is student-on-student.

The actual knowledge standard is sufficient to resolve the case before the Court today, because Doe alleged that the University actually knew of the campaign of harassment against her. Indeed, counsel for the University conceded at oral argument that school officials knew of at least some of the incidents of sexual harassment. The parties agree that school officials on one occasion suspended some of the male students involved and took other actions in response to the harassment. Such responses preclude any argument that the officials did not have actual knowledge.

Furthermore, the requirement of actual knowledge is an appropriate limitation upon the liability to which suits based on student-on-student harassment subject schools. It will prevent schools from being blind sided by liability based upon events that officials did not even know were taking place. Such a requirement does not place too severe a burden on potential plaintiffs. All that is required is that they report the alleged harassment to responsible school officials, thus giving the school a chance to respond before it is hauled into court.

CONCLUSION

Jane Doe has alleged that she was subjected to hostile environment sexual harassment. As noted above, Doe also alleged (and the University concedes) that school and University officials had actual knowledge of that harassment. In addition, Doe has alleged facts that would allow a jury to find that the University failed to respond promptly and appropriately to her complaints.

For the reasons set forth in Part I of this opinion, the district court's denial of the University's motion to reconsider on the basis of Eleventh Amendment immunity is affirmed. Because the plaintiff, Jane Doe, alleged facts sufficient to support each element of her claim that the University violated Title IX, the district court's dismissal of her Title IX cause of action against the University pursuant to Federal Rule of Civil Procedure 12(b)(6) is hereby reversed. The case is remanded to the district court for further proceedings consistent with this opinion.