GEBSER
v. LAGO VISTA INDEPENDENT SCHOOL DISTRICT, June 1998, US Supreme Court
Summary and Analysis by UC General Counsel Melvin W. Beal
In the Title IX case Gebser v. Lago Vista Independent School District (96-1866),
the Court considered school district liability for the sexually harassing behavior
of a high school teacher toward a student.
Gebser was a high school student who had a sexual relationship with one of
her teachers. She did not report the relationship to school officials. After
she and her teacher were discovered having sex the teacher was arrested, and
the school district terminated his employment. At the time the district had
not promulgated or distributed an official grievance procedure for lodging sexual
harassment complaints, nor did it have a formal anti-harassment policy as required
by federal regulations. Gebser filed an action for damages against the school
district under Title IX of the Education Amendments of 1972.
The Supreme Court held that damages may not be recovered for teacher-student
sexual harassment in an implied private action under Title IX unless a school
district official who, at a minimum, has authority to institute corrective measures
on the districts behalf, has actual notice of, and is deliberately indifferent
to, the teachers misconduct. The Court distinguishes Title VII in which there
is a prohibition against employment discrimination which runs against "an
employer" and explicitly defines "employer" to include "any
agent." Title IX contains no comparable reference to educational institutions
"agents" and so does not expressly call for application of agency
principles. In its analysis the Court concluded that it would "frustrate
the purposes" of Title IX to permit a damages recovery against a school
district for a teacher's sexual harassment of a student based on principles
of respondeat superior or constructive notice, i.e., without actual notice to
a school district official.
The Court states that Congress enacted Title IX in 1972 with two principles
objectives in mind: "to avoid the use of federal resources to support discriminatory
practices" and "to provide individual citizens effective protection
against those practices." Title IX conditions an offer of federal funding
(under Congress spending power) on a promise by the recipient not to discriminate.
Essentially, a contract exists between the government and the recipient of the
funds. If the recipient institution discriminates based on sex, then it has
breached the contract and funding may be terminated. This contractual framework
distinguishes Title IX from Title VII. Title VII is not framed in terms of a
condition but of an outright prohibition against discrimination. Title IX provides
an opportunity for educational institutions to comply with statutory requirements
before the federal agency can begin enforcement proceedings to cut off federal
funding. The Court concludes:
"It would be unsound, we think, for a statute express system of enforcement
to require notice to the recipient and an opportunity to come into voluntary
compliance while a judicially implied system of enforcement permits substantial
liability without regard to the recipients knowledge or its corrective actions
upon receiving notice."
Finally, the Court determined that the express remedial scheme under Title
IX is predicated upon notice to an "appropriate person" and an opportunity
to rectify any violation. An "appropriate person" is, "at a minimum,
an official of the recipient entity with authority to take corrective action
to end the discrimination." Moreover, the institutions response must amount
to "deliberate indifference to discrimination."
"The administrative enforcement scheme presupposes that an official who
is advised of a Title IX violation refuses to take action to bring the recipient
into compliance. The premise, in other words, is an official decision by the
recipient not to remedy the violation."
The lower courts have been all over the legal map on the issues of an educational
institution's vicarious liability for the harassing behavior of teachers and
on the issue of whether constructive, rather than actual notice, is sufficient
to impose liability on an institution. The Supreme Court has laid that controversy
to rest. And, the Court goes even further by stating that, even if the appropriate
official has actual notice, there must be a refusal to remedy the violation.
It may still be an open question whether a half-hearted attempt to remedy is
the equivalent of a refusal.
UPDATE ON GEBSER
V LAGO VISTA, February1999
The U.S. Supreme Court case of Gebser v. Lago Vista Independent School Dist
in which the court held that before liability will be imposed on a school district
for the sexually harassing behavior of a teacher directed at a student, plaintiff
must establish actual notice and "deliberate indifference" to the
behavior. This seemed like a very high standard to meet and we thought that
this would significantly lessen potential liability. That may still be the case
but at least one court, after Gebser, has ruled that the reaction of a university
to the repeated behavior over time might lead a jury to find that there was
deliberate indifference. The case is a good wake-up call and a warning that
where we have problematic behavior over time and our response is inadequate,
the deliberate indifference standard might be met.
In Chontos v. Rhea & Indiana University (Federal District Court, Northern
District of Indiana, November, 1998) the court held that a jury could find deliberate
indifference under the following circumstances:
1. Rhea (faculty member) was involved in two incidents with female students
in 1989. The university's response was to issue a reprimand.
2. Later in 1989 another incident occurred involving swatting on the butt a
17 year old high school student who was in a university program. The university
recommended that Rhea get psychological counseling and that if he was involved
in another incident he would be suspended or dismissed. Documents relating to
these cases were sealed and placed in Rhea's personnel file.
3. In 1994 Rhea made advances toward a female student. A former supervisor
of Rhea, "acting as a friend", told him to clean up his act. No other
action occurred.
4. In 1996, Rhea forcibly grabbed Chontos (plaintiff in this lawsuit), tried
to kiss her on the mouth and put his tongue in her mouth, pulled up her shirt
and bra, grabbed at her breasts, put his mouth on them, grabbed her buttocks
and moved his hand around her genitals. About a month later, Rhea was suspended
and told to stay off campus.
5. In 1997 a faculty committee recommended that dismissal proceedings against
Rhea should commence. He was allowed to resign with full benefits, and he did
so.
The court held "that a reasonable jury could find that the university
was deliberately indifferent to Rhea's sexually harassing conduct. Accordingly,
summary judgment on the Title IX claim is not appropriate."
