This result is consistent with decisions finding no individual liability under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), which prohibits discrimination on the basis of sex by an education program or activity receiving federal funding. See, e.g., Smith v. Metropolitan Sch. Dist., 128 F.3d 1014, 1018-19 (7th Cir. 1997). Relying upon language in Paralyzed Veterans, Emerson argues that the individual college defendants may be liable because they are "in a position to accept or reject" funding.
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.
Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). It is well-established, and Defendant agrees, that Pimentel's sexual conduct with Plaintiffs constituted discrimination based on sex under Title IX. Smith v. Metropolitan School District Perry Township, 128 F.3d 1014, 1021 (7th Cir. 1997) (determining that sexual harassment or abuse of a student by a teacher constitutes sex discrimination under Title IX) (citations omitted); see also Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties ("OCR Guidelines") 62 Fed. Reg. 12034, 12039 (1997); Kadiki v. Virginia Commonwealth Univ., 892 F. Supp. 746 (E.D.Va. 1995). Title IX prohibits discrimination occurring under any educational program or activity. Title IX's definition of "program or activity" includes "all operations of a local educational agency . . . or other school system.
The Fifth Circuit's analysis represents one of the varying approaches adopted by the Courts of Appeals in assessing a school district's liability under Title IX for a teacher's sexual harassment of a student. See Smith v. Metropolitan School Dist. Perry Twp., 128 F.3d 1014 (CA7 1997); Kracunas v. Iona College, 119 F.3d 80 (CA2 1997); Doe v. Claiborne County, 103 F.3d 495, 513-515 (CA6 1996); Kinman v. Omaha Public School Dist., 94 F.3d 463, 469 (CA8 1996). We granted certiorari to address the issue, 522 U.S. 1011 (1997), and we now affirm.
In enacting Title IX, Congress sought to hold educational institutions liable for their own misconduct, not for the misconduct of an employee. See, e.g., Gebser v. Logo Vista Indep. Sch. Dist, 524 U.S. 274, 289-90, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1018-19 (7th Cir. 1997). That said, a teacher's sexual harassment of a student may render a school district liable for sex discrimination under Title IX. Franklin, 503 U.S. at 75, 112 S.Ct. 1028; see also Metro. Sch. Dist. Perry Twp., 128 F.3d at 1021-22.
From what we have already written about the contractual nature of the liability, we think it follows that, because the contracting party is the grant-receiving local school district, a "Title IX claim can only be brought against a grant recipient [— that is, a local school district —] and not an individual." Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014, 1019 (7th Cir. 1997); see also Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012-13 (5th Cir. 1996). The main issue in this case is by what acts or, perhaps, by whose acts does the local school district become liable to an individual under Title IX.
Title IX implicitly provides a private right of action for sex discrimination. Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1018 (7th Cir. 1997). In Smith, the Seventh Circuit determined that Title IX, unlike Title VII, "provides no basis for creating a standard of liability based on agency principles."
Furthermore, "When the cases speak of 'known' or 'obvious' risk that makes a failure to take steps against it reckless they have in mind risks so great that they are almost certain to materialize if nothing is done. . . ." Id. (citing cases); see also Hansen v. Bd. of Trustees of Hamilton Southeastern School Corp., 551 F.3d 599, 605-06 (7th Cir. 2008) (plaintiffs had to establish genuine issue of fact as to whether an appropriate official at the school had actual knowledge of misconduct by the teacher that created serious risk to its students for purposes of summary judgment); Smith v. Metro. School Dist. Perry Twp., 128 F.3d 1014, 1034 (7th Cir. 1997) (where defendant had no knowledge of "alleged discrimination," it could not have intentionally discriminated against the plaintiff); and Bostic v. Smyrna School Dist., 418 F.3d 355, 360-61 (3d Cir. 2005) (district court did not err in instructing the jury that an educational institution has actual knowledge if "it knows the underlying facts, indicating sufficiently substantial danger to students, and was therefore aware of the danger"). The defendant must have knowledge of previous acts of sexual harassment by the teacher, not of previous acts directed against the particular plaintiff.
The Court concludes, however, that individual liability is not created solely by imperfectly exclusive statutory language. The great majority of courts addressing the issue have concluded that there is no individual liability under Title IX. See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir. 1988); Smith v. Metro. Sch. Dist., 128 F.3d 1014 (7th Cir. 1997). See also Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir. 1996) (Nelson, J., concurring) ("I do not believe that Title IX can appropriately be read as subjecting anyone other than educational institutions to liability for violation of its terms.").
Our own circuit has also held in the Title IX context that "only a grant recipient" can violate the statute. See Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014 (7th Cir. 1997). But we came to this conclusion not based on limitations of Congress's Spending Clause power but rather because the terms of Title IX prohibited discrimination "only by a `program or activity' receiving federal funding."