Tonia Hawkins v. Sarasota County School Board, 322 F.3d 1279, 11th Cir. (2003)
Tonia Hawkins v. Sarasota County School Board, 322 F.3d 1279, 11th Cir. (2003)
3d 1279
"sexy baby" and stated that "you have a bun, and I have a hot dog, and I
want to eat them both." At the playground, he would chase the girls and
try (sometimes successfully) to touch them on their chests, and
(unsuccessfully) to kiss them. At the bus stop, he also would try to grab
Jane Doe III and look up her skirt. He would also jump onto her and rub
his body on hers. The girls stated that this conduct took place over a
period of several months.
While none of the girls' grades appeared to suffer, two of them said that on
four or five occasions they faked being sick in order not to go to school.
Their parents testified that they cried more frequently, appeared anxious,
and were reluctant to go to school.
B
While a number of school personnel had received complaints about John
Doe, none stated that they had seen him engage in behavior that was
overtly sexual. Kathy Martin, a staff member in Toledo Blade's
lunchroom, testified that while she had witnessed John Doe running
indoors, not sitting, exhibiting bad table manners, and hitting another
student, she could not recall an instance of a female student specifically
reporting his behavior. The children's computer, life skills, and art
teachers all gave consistent reports about John Doe's bad behavior.
The children spent the most time during the school day in Cyphers' class.
Within a week of John Doe's joining the class, Cyphers began to receive
complaints that he was being "annoying" to the other children, tapping his
pencil, and distracting them from doing their work. Periodically, she
received complaints that he had pushed other children at the playground.
Such complaints would come from both boys and girls alike.
Cyphers testified that some time near the end of the school year, either at
the end of April or the beginning of May, three girls Jane Doe II and
two girls not involved with this suit approached Cyphers and told her
that John Doe was being "disgusting." Cyphers stated that John Doe had
been saying "I love you" and "will you marry me" to the girls, and she
referred to the conduct as "natural things in second grade. You know,
things they hear at home." She stated that it was not until she had spoken
with Jane Doe III's mother in May, 1999 that she had been informed of
any of the explicit things John Doe had said or done.
The three girls, however, testified that they had been quite persistent in
describing John Doe's behavior to Cyphers, and that Cyphers repeatedly
ignored their reports. Jane Doe I stated that she told Cyphers that John
Doe was being "nasty" not long after he first exhibited harassing behavior.
She claimed that she was no more explicit because she did not want to get
in trouble. She stated that she told Cyphers a number of times about John
Doe's conduct, but Cyphers always responded that she would take care of
it later. Jane Doe II stated that, early in the year, she told Cyphers that
John Doe was being "disgusting" and asked to have her seat moved. She
also claims to have told Cyphers on a number of occasions when the
children were playing outside that John Doe was being "nasty" and asked
Cyphers to do something about it.
According to Jane Doe III, one day after she arrived at Toledo Blade, she
told Cyphers that John Doe had been following her. Jane Doe III said that
during recess that day, when John Doe touched her in the groin, she told
Cyphers that John Doe was being "gross." She was not more explicit
because she did not feel comfortable enough with Cyphers on only her
second day. She stated that on another occasion, she told Cyphers that
John Doe had told her to "suck his dick." She stated that Cyphers
immediately told her to sit down and did nothing else. Jane Doe III
testified that she spoke to Cyphers (and was rather explicit) about John
Doe virtually every day.
C
Shortly after May 5, 1999, Jane Doe III's mother contacted both Coulson
and Cyphers. Cyphers told her that the school was aware of John Doe's
behavior, and that the school was working with John Doe's parents to try
to resolve his behavior problems.5 After Jane Doe III and her mother
discussed the allegations of harassment with Coulson, he contacted John
Zoretich, Director of Sarasota County Elementary Schools, and was told
to "follow through" on the allegations. After meeting with Jane Doe III
and her mother, Coulson suspended John Doe for all of the following
week.6 For the week after he returned, John Doe was given an "in-school"
suspension, where he sat at a desk in Coulson's office for much of the day,
and had escorts take him to the lunchroom and bus at the end of the day.
Coulson directed Cyphers to make sure John Doe and Jane Doe III were
separated "at all times."
Some time during the first week of June, 1999, Coulson received a fax
from the attorney representing the guardians of the three girls, notifying
him that John Doe's conduct had recurred. Coulson then suspended John
Doe for the remainder of the school year. During the last week of the
school year, a guidance counselor conducted a program for the students
on appropriate and inappropriate "touching." After the suspension,
Coulson recommended to John Doe's father that John Doe seek social
counseling. John Doe's return to Toledo Blade was contingent upon his
being given counseling. Through the summer, he participated in a family
services counseling program. At the beginning of the following school
term, the school saw to it that John Doe and Jane Doe III were not placed
in the same classroom. In third grade, for the time he was at Toledo Blade,
John Doe was given an adult escort from the time he got on campus until
the time he left at the end of the day. Though John Doe and Jane Doe III
had brief interactions in third grade before he left for another school, Jane
Doe III reported no further instances of harassment.
III
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 benefit of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance.
20 U.S.C. 1681 (1984). Our analysis is controlled by the Supreme
Court's recent decision in Davis, which, in turn, is grounded upon the
Court's decision in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, Justice O'Connor, in
a 5-4 decision, held that a school district cannot be liable for sexual
harassment of a student by one of the district's teachers "unless an official
of the school district who at a minimum has authority to institute
corrective measures on the district's behalf has actual notice of, and is
deliberately indifferent to the teacher's misconduct." Gebser, 524 U.S. at
277, 118 S.Ct. at 1993. In Davis, Justice O'Connor, again in a 5-4
decision, but this time joined by the four Gebser dissenters, held that "in
certain limited circumstances," deliberate indifference to known acts of
harassmentthe misconduct identified in Gebseramounts to an
intentional violation of Title IX capable of supporting a private damages
action even when the harasser is a student rather than a teacher. Davis,
526 U.S. at 643, 119 S.Ct. at 1671. In order to determine the scope of the
"limited circumstances" it is necessary to scrutinize both opinions.
In Gebser, the Court examined the text and purpose of Title IX in order to
shape the judicially implied private right of action. Since Congress had
expressly directed that an administrative agency could not initiate
enforcement proceedings under Title IX until it "ha[d] advised the
appropriate person or persons of the failure to comply with the
The Davis Court held that these allegations were sufficient to state a claim
under Title IX, concluding that
funding recipients are properly held liable in damages only where they are
deliberately indifferent to sexual harassment, of which they have actual
knowledge, that is so severe, pervasive, and objectively offensive that it
can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school.
Davis, 526 U.S. at 650, 119 S.Ct. at 1675.
After Davis, then, a court confronted with a private damages action under
Title IX must ask two questions: (1) was the school board deliberately
indifferent to sexual harassment about which it had actual knowledge; and
(2) was the sexual harassment so severe, pervasive, and objectively
offensive that it can be said to have systemically deprived the victims of
access to the educational opportunities of the school?
* To answer the first question, it is necessary to examine who, within the
school system, must have notice of the harassment for the school board to
be considered to have actual knowledge. Gebser held that a Title IX
damages remedy would not lie unless "an official who at a minimum has
authority to address the alleged discrimination and to institute corrective
measures on the recipient's behalf has actual knowledge of the
discrimination...." Gebser, 524 U.S. at 290, 118 S.Ct. at 1999. In that case,
the Court pointed out that the only official alleged to have had notice of
the teacher's misconduct was the high school principal. However, the
principal's only "notice" was a report about inappropriate comments being
made in class. The Court deemed this insufficient to alert the principal to
the possibility that the teacher was involved in a sexual relationship with
the student. The Court also noted that the principal did not report the
complaint to the superintendent. Without the necessary actual notice, the
Court held that the school board could not be held liable.
The Davis court did not explicitly discuss the type of school employee
who must know about harassment by a fellow student before it is
actionable, but held that notice of harassment to the principal and two
teachers was deemed sufficient to support a cause of action under Title IX.
In dissent, however, Justice Kennedy found the Davis majority's failure to
describe explicitly who must have notice to be "telling." Davis, 526 U.S.
at 679, 119 S.Ct. at 1688 (Kennedy, J., dissenting). He suggested that in
most cases of student misbehavior it is the teacher, at least in the first
instance, who has authority to punish the offender and remedy the
The deliberate indifference issue is intertwined with the question of notice since
whether the Board's actions were clearly unreasonable must be measured by
what was known.11 We have therefore decided that the better course is to
refrain from answering the notice and deliberate indifference issues involved in
the first question and to rest our opinion on the denial of access issue.
B
2
The next question we must ask is: was the sexual harassment so severe,
pervasive, and objectively offensive that it can be said to have systematically
deprived the victims of access to the educational opportunities of the school?
When interacting with each other, children often exhibit behavior that would be
wholly unacceptable between adults. "The real world of school discipline is a
rough-and-tumble place where students practice newly learned vulgarities,
erupt with anger, tease and embarrass each other, share offensive notes, flirt,
push and shove in the halls, grab and offend." Brief of Amici Curiae National
School Boards Ass'n et al. at 11, Davis, 526 U.S. 629, 119 S.Ct. 1661, 143
L.Ed.2d 839 (1999) (No. 97-843). In the school setting, students often engage
in insults, teasing, shoving, and gender-specific conduct that is upsetting to the
student subjected to it. Damages are not available for simple acts of teasing and
mere name-calling among school children even where these comments target
differences in gender. Davis, 526 U.S. at 651-52, 119 S.Ct. at 1675.
Even assuming that the behavior was severe, pervasive, and objectively
Even assuming that the behavior was severe, pervasive, and objectively
offensive, it was not so severe, pervasive, and objectively offensive that it had
the systemic effect of denying the girls equal access to education. As the
Supreme Court stated, the most obvious example of student-on-student
harassment capable of denying a victim access to education and thus triggering
a damages claim would involve overt, physical denial of access to school
resources. Examples given by the Court included circumstances where male
students physically threatened female students daily, thereby successfully
preventing them from using a computer lab or athletic field. Davis, 526 U.S. at
650-51, 119 S.Ct. at 1675. No physical exclusion or denial of access to facilities
is involved in this case.
The behavior must also be severe enough to have a "systemic" effect of denying
the victim equal access to an educational program or activity. We take this to
mean that gender discrimination must be more widespread than a single
instance of one-on-one peer harassment and that the effects of the harassment
touch the whole or entirety of an educational program or activity.12
10
The record in this case reflects no concrete, negative effect on either the ability
to receive an education or the enjoyment of equal access to educational
programs or opportunities. None of the girls suffered a decline in grades and
none of their teachers observed any change in their demeanor or classroom
participation. The girls simply testify that they were upset about the
harassment, although not enough to tell their parents until months after it began.
Two of the girls say they faked being sick four or five times in order not to go
to school. This falls short of demonstrating a systemic effect of denying equal
access to an educational program or activity.13
IV
11
In sum, it bears emphasis that a private damages action under Title IX,
grounded as it is on a judicially implied right of action shaped by the Supreme
Court is analyzed differently than claims under Title VII or 42 U.S.C. 1983,
and is available only in limited circumstances. In this case, the harassment was
not so severe, pervasive, and objectively offensive that it systemically deprived
the victims of access to the educational opportunities of the school.
Notes:
*
While John Doe's father stated that John Doe was a "clown" who "want[ed] to
get all the attention," he testified that by using vulgar expressions, John Doe
was trying to mimic older children that he had spent time with at Little League.
According to John Doe's father, "[o]ne of the little boys on the baseball field ...
would push his hip out towards [John Doe] and say `suck this.'"
Jane Doe III testified that a number of boys in the class were familiar with and
used this gesture. In addition, the girls testified that they did not know the
meaning of a number of terms and gestures that John Doe used. Jane Doe II
testified that at the time, she did not know what it meant to have sex, but only
had an idea that it was something "nasty." Jane Doe III testified that before
being harassed by John Doe, she did not know the meanings of the words
"dick" and "penis."
Jane Doe III stated that this conduct took place in front of both her and Jane
Doe II
Some time before the school had instituted disciplinary proceedings against
John Doe, the school had conducted a "peer mediation" involving John Doe and
another girl over comments John Doe had made. Such mediations were
conducted by trained fifth graders, who would assist younger students in talking
through their disputes
2002 Fla. Laws ch. 2002-387 1058 repealed Part I of chapter 243 and chs.
228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 239, 240, 241, 242, 244, and
246 of the Florida Statutes effective January 7, 2003. These sections constituted
much of the "Florida School Code." The Florida School Code replaced by the
revised and renamed "Florida K-20 Education Code."See FLA. STAT. ANN.
chs. 1000-1013 (2003). The Florida Educational Equity Act was revised and
renumbered 1000.05.
The Act authorizes the State Board of Education to adopt rules and directs the
Office of Equal Educational Opportunity of the Department of Education to
conduct reviews to determine compliance with the Act and upon finding the
agency is not in compliance, to notify the agency of the steps necessary for
compliance. Pursuant to this authority, FLA. ADMIN. CODE ANN. r. 6A19.010 (2002) also directs each school district to submit a plan of
implementation which must include the policy of nondiscrimination adopted by
the board. The policy must include the name of the equity coordinator designed
to coordinate compliance and must include grievance and complaint procedures
available to all students and their parents. InGebser, Justice Ginsburg,
dissenting on behalf of three of the justices, suggested that the Court recognize
as an affirmative defense to a Title IX charge of sexual harassment an effective
policy for reporting and redressing such conduct. Gebser, 524 U.S. at 307, 118
S.Ct. at 2007.
We note that subsequent to the Supreme Court's decisions inGebser and Davis,
the Office of Civil Rights of the U.S. Department of Education ("OCR"), the
agency responsible for regulatory enforcement of Title IX has provided
guidance for schools in recognizing and responding to sexual harassment of
students. See Revised Sexual Harassment Guidance: Sexual Harassment of
Students by School Employees, Other Students, or Third Parties, 66 Fed.Reg.
5,512 (Jan. 19, 2001), available at http://www.ed.gov/ocr/shguide. While
recognizing the requirement of actual notice for private actions seeking money
damages, OCR continues to assert that for regulatory purposes and for private
actions for injunctive and other equitable relief, a school has notice if a
responsible employee knew, or in the exercise of care should have known of
the harassment. According to OCR, a responsible employee for purposes of
notice includes "any employee who has the authority to take action to redress
the harassment, who has the duty to report to appropriate school officials sexual
11
12
13