UC Santa Cruz Title IX/Sexual Harassment Office

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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.


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."

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Contact Rita Walker , Title IX Officer: 105 Kerr Hall . email: rew@ucsc.edu . phone 831.459.2462 * 831.459.4825