Davis v. Monroe Cty. Board of Ed. ( 1996 )


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  •                                  United States Court of Appeals,
    
                                             Eleventh Circuit.
    
                                               No. 94-9121.
    
                  Aurelia DAVIS, as Next Friend of LaShonda D., Plaintiff-Appellant,
    
                                                     v.
    
            MONROE COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.
    
                                              Aug. 21, 1997.
    
    Appeal from the United States District Court for the Middle District of Georgia. (No. 94-CV-140-
    4MAC(WDO), Wilbur D. Owens, Jr., Judge.
    
    Before HATCHETT, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK,
    CARNES and BARKETT, Circuit Judges*, and KRAVITCH** and HENDERSON, Senior Circuit
    Judges.
    
            TJOFLAT, Circuit Judge:
    
            Appellant, Aurelia Davis, brought this suit against the Board of Education of Monroe
    
    County, Georgia, (the "Board") and two school officials, Charles Dumas and Bill Querry, on behalf
    
    of her daughter, LaShonda Davis. The complaint alleged that the defendants violated Section 901
    
    of the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as
    
    amended at 20 U.S.C. § 1681 (1994)) ("Title IX"), and 42 U.S.C. § 19831 by failing to prevent a
    
    student at Hubbard Elementary School ("Hubbard") from sexually harassing LaShonda while she
    
    was a student there. Appellant separately alleged that the defendants discriminated against
    
    
    
    
       *
        Judge R. Lanier Anderson recused himself and did not participate in this decision.
       **
        Senior Judge Phyllis A. Kravitch, who was a member of the en banc court which heard oral
    argument in this case, took senior status on January 1, 1997, and has elected to participate in this
    decision pursuant to 28 U.S.C. § 46(c).
       1
        This section provides, "Every person who, under color of any statute, ordinance, regulation,
    custom, or usage, of any State ... subjects, or causes to be subjected, any ... person ... to the
    deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
    be liable to the party injured...." 42 U.S.C. § 1983 (1994).
    LaShonda on the basis of race in violation of 42 U.S.C. § 1981.2 Appellant sought injunctive relief
    and $500,000 in compensatory and punitive damages.
    
           The district court dismissed appellant's complaint in its entirety for failure to state a claim
    
    upon which relief can be granted. See Aurelia D. v. Monroe County Bd. of Educ., 
    862 F. Supp. 363
    ,
    
    368 (M.D.Ga.1994); see also Fed.R.Civ.P. 12(b)(6). Appellant appealed the district court's
    
    dismissal of her Title IX claim against the Board,3 arguing that a school board can be held liable
    
    under Title IX for its failure to prevent sexual harassment among students. On appeal, a divided
    
    three-judge panel reinstated her Title IX claim against the Board. See Davis v. Monroe County Bd.
    
    
    
       2
        Davis actually alleged that the named defendants discriminated on the basis of race in
    violation of "the Education Act of 1972 and the Civil Rights Act of 1991." Davis was apparently
    referring to the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat. 235 (1972), and the
    Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991). The former act, however,
    does not address racial discrimination in education, and the latter act does not provide a cause of
    action for racial discrimination in education. The district court construed this portion of the
    complaint to allege a violation of 42 U.S.C. § 1981, which does provide a cause of action against
    certain types of racial discrimination.
       3
        Davis did not appeal the district court's dismissal of her Title IX claim with regard to
    individual defendants Dumas and Querry. Davis similarly did not appeal the district court's
    dismissal of her § 1981 claim. Therefore, we do not consider these claims.
    
                  With regard to Davis' § 1983 claim, the complaint seemed to allege that the
           defendants were liable under this provision solely because they violated Title IX. Davis,
           however, apparently argued before the district court that the defendants were liable under
           § 1983 for infringing LaShonda's rights under the Due Process Clause of the Fourteenth
           Amendment to the United States Constitution. The district court dismissed this implied
           claim under Rule 12(b)(6). See Aurelia D., 862 F.Supp. at 366.
    
                   Davis did not appeal the dismissal of her § 1983 claim to the extent it was based
           on the defendants' alleged violation of Title IX. Accordingly, that claim is not before us.
           She did, however, appeal the dismissal of her § 1983 claim to the extent it was based on
           the defendants' alleged violation of the Due Process Clause. In addition, Davis argued
           for the first time before the three-judge panel that the same § 1983 claim encompassed a
           violation of the Equal Protection Clause of the Fourteenth Amendment.
    
                   The panel rejected Davis' due-process and equal-protection arguments and
           affirmed the dismissal of her steadily expanding § 1983 claim under 11th Cir. R. 36-1.
           See Davis v. Monroe County Bd. of Educ., 
    74 F.3d 1186
    , 1188 (1996). Davis did not
           petition the court to rehear this ruling en banc, and we see no reason to disturb the panel's
           decision sua sponte. We therefore do not consider Davis' various § 1983 claims. In sum,
           we address only Davis' Title IX claim against the Board.
    
                                                     2
    of Educ., 
    74 F.3d 1186
    , 1195 (11th Cir.1996). At the Board's request, we granted rehearing en banc
    
    to consider appellant's Title IX claim,4 and we now affirm the district court's dismissal of this claim.
    
                                                       I.
    
                                                      A.
    
            We review de novo the district court's dismissal of appellant's complaint for failure to state
    
    a claim upon which relief can be granted. See McKusick v. City of Melbourne, 
    96 F.3d 478
    , 482
    
    (11th Cir.1996). To this end, we take as true the allegations appellant has set forth in her complaint
    
    and examine whether those allegations describe an injury for which the law provides relief. See
    
    Welch v. Laney, 
    57 F.3d 1004
    , 1008 (11th Cir.1995). We construe appellant's allegations liberally
    
    because the issue is not whether appellant will ultimately prevail but whether she is entitled to offer
    
    evidence to support her claims. Scheuer v. Rhodes, 
    416 U.S. 232
    , 236, 
    94 S. Ct. 1683
    , 1686, 
    40 L. Ed. 2d 90
     (1974). We begin by describing the allegations contained in appellant's complaint.
    
                                                      B.
    
           LaShonda Davis was enrolled as a fifth-grade student at Hubbard during the 1992-1993
    
    school year. During that school year, Bill Querry was the principal of Hubbard, and Diane Fort,
    
    Joyce Pippin, and Whit Maples were teachers at the school. The complaint alleges that the Board
    
    administered federally funded educational programs at Hubbard and supervised the school's
    
    employees, including Principal Querry and Teachers Fort, Pippin, and Maples.
    
           According to the complaint, a fifth-grade student named "G.F." was in several of LaShonda's
    
    classes and initially was assigned to the seat next to LaShonda in Fort's classroom. On December
    
    17, 1992, while in Fort's classroom, G.F. allegedly tried to touch LaShonda's breasts and vaginal
    
    area. G.F. also allegedly directed vulgarities at LaShonda, such as "I want to get in bed with you"
    
    and "I want to feel your boobs." LaShonda complained to Fort. After school that day, LaShonda
    
    also told her mother, the appellant, about G.F.'s behavior. The complaint states that G.F. engaged
    
    
       4
        See Davis v. Monroe County Bd. of Educ., 
    91 F.3d 1418
     (11th Cir.1996). Granting rehearing
    en banc vacated the panel opinion by operation of law. 11th Cir. R. 35-11.
    
                                                       3
    in similar (although unspecified) conduct on or about January 4, 1993,5 and again on January 20,
    
    1993. LaShonda allegedly reported both incidents to Fort and to appellant. After one of these first
    
    three incidents, appellant called Fort, who told appellant in the course of their conversation that
    
    Principal Querry knew about one of the incidents.
    
           G.F.'s misconduct continued. On February 3, 1993, G.F. allegedly placed a door-stop in his
    
    pants and behaved in a sexually suggestive manner toward LaShonda during their physical education
    
    class. LaShonda reported this incident to Maples, who was the physical education teacher. On
    
    February 10, 1993, G.F. engaged in unspecified conduct similar to that of the December 17 incident
    
    in the classroom of Pippin, another of LaShonda's teachers. LaShonda notified Pippin of G.F.'s
    
    behavior and later told appellant, who then called Pippin to discuss the incident. On March 1, 1993,
    
    G.F. directed more unspecified, offensive conduct toward LaShonda during physical education class.
    
    LaShonda reported G.F. to Maples and Pippin. An unidentified teacher allegedly told LaShonda that
    
    Principal Querry was not ready to listen to her complaint about G.F.
    
           At some point around March 17, 1993, Fort allowed LaShonda to change assigned seats
    
    away from G.F. G.F., however, persisted in his unwelcome attentions. On April 12, 1993, he rubbed
    
    his body against LaShonda in a manner she considered sexually suggestive; this incident occurred
    
    in the hallway on the way to lunch. LaShonda again complained to Fort.
    
           Lastly, on May 19, 1993, LaShonda complained to appellant after school about more
    
    unspecified behavior by G.F. Appellant and LaShonda then paid a visit to Principal Querry to
    
    discuss G.F.'s conduct. At this meeting, Querry asked LaShonda why no other students had
    
    complained about G.F. During this meeting, Querry also told appellant, "I guess I'll have to threaten
    
    [G.F.] a little bit harder." On the same day, May 19, G.F. was charged with sexual battery, a charge
    
    which he apparently did not deny. The complaint does not tell us who summoned the police.
    
       5
        The complaint actually alleges that this second instance of harassment occurred "on or about
    January 2, 1993." We note that January 2, 1993 was a Saturday. Presumably, there was no
    school on Saturday, so G.F. could not have sexually harassed LaShonda at Hubbard on that day.
    Friday, January 1, 1993, was a holiday. Accordingly, we assume for appellant's benefit that the
    alleged harassment occurred on or about January 4, 1993.
    
                                                     4
           In all, the complaint describes eight separate instances of sexual harassment by G.F. These
    
    eight instances of alleged harassment occurred, on average, once every twenty-two days over a
    
    six-month period. Three instances occurred in Fort's classroom; two occurred in Maples' physical
    
    education class; one occurred in Pippin's classroom; one occurred in a school hallway; and one
    
    occurred in an unspecified location. LaShonda reported four instances of alleged harassment to Fort,
    
    two to Maples, and two to Pippin. LaShonda reported the final instance of harassment, the May 19
    
    incident, to appellant and Querry. The complaint does not allege that any faculty member knew of
    
    more than four instances of harassment, and the complaint indicates that Principal Querry learned
    
    of only one instance of harassment before his meeting with appellant and LaShonda on May 19.
    
           The complaint does not state what action each of the teachers took upon being informed by
    
    LaShonda of G.F.'s demeaning conduct. We assume for appellant's benefit that the teachers took
    
    no action other than Fort's apparent notification of Principal Querry after one of the first three
    
    instances of alleged harassment and Fort's decision around March 17, 1993, to move LaShonda's
    
    assigned seat away from that of G.F. We will also accept as true that Principal Querry took no
    
    measures against G.F. other than threatening him with disciplinary action at some point before his
    
    May 19 meeting with appellant and her daughter. For example, we assume for appellant's benefit
    
    that someone other than the school staff instigated the prosecution of G.F.
    
           Appellant claims that LaShonda suffered mental anguish because of G.F.'s behavior. As
    indicia of this emotional trauma, the complaint states that LaShonda's grades dropped during the
    
    1992-1993 school year and that LaShonda wrote a suicide note in April 1993. Based on the above
    
    allegations, appellant contends that "[t]he deliberate indifference by Defendants to the unwelcomed
    
    [sic] sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and
    
    abuse [sic] school environment in violation of Title IX." We therefore consider whether Title IX
    
    allows a claim against a school board based on a school official's failure to remedy a known hostile
    
    
    
    
                                                     5
    environment6 caused by the sexual harassment of one student by another ("student-student sexual
    
    harassment").
    
                                                     II.
    
           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 (1994).
    
    Although nothing in the plain language of Title IX speaks to the issue of student-student sexual
    
    harassment, several district courts have held that Title IX allows a student to sue a school board for
    
    failing to prevent hostile-environment sexual harassment by another student.              See Doe v.
    
    Londonderry Sch. Dist., No. 95-469-JD, http://lw.bna.com/ # 0708, --- F.Supp. ---- (D. N.H. June
    
    13, 1997); Nicole M. v. Martinez Unified Sch. Dist., 
    964 F. Supp. 1369
    , 1337-78 (N.D.Cal.); Collier
    
    v. William Penn Sch. Dist., 
    956 F. Supp. 1209
    , 1213—14 (E.D.Pa.1997); Bruneau By and Through
    
    Schofield v. South Kortright Cent. Sch. Dist., 
    935 F. Supp. 162
    , 172 (N.D.N.Y.1996); Doe v.
    
    Petaluma City Sch. Dist., 
    830 F. Supp. 1560
    , 1576 (N.D.Cal.1993), rev'd on other grounds, 
    54 F.3d 1447
     (9th Cir.1995); Burrow v. Postville Community Sch. Dist., 
    929 F. Supp. 1193
    , 1205 (N.D.Iowa
    
    1996); Wright v. Mason City Community Sch. Dist., 
    940 F. Supp. 1412
    , 1419-20 (N.D.Iowa 1996);
    
    Bosley v. Kearney R-1 Sch. Dist., 
    904 F. Supp. 1006
    , 1023 (W.D.Mo.1995); Oona R.-S. v. Santa
    
    Rosa City Schs., 
    890 F. Supp. 1452
    , 1469 (N.D.Cal.1995); Patricia H. v. Berkeley Unified Sch. Dist.,
    
    
    830 F. Supp. 1288
    , 1293 (N.D.Cal.1993). But see Garza v. Galena Park Indep. Sch. Dist., 914
    
    
    
       6
        The term "hostile environment" sexual harassment originated in employment litigation under
    § 703 of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241, 255 (1964) (codified at
    42 U.S.C. § 2000e-2 (1994)) ("Title VII"). Hostile-environment sexual harassment occurs
    whenever an employee's speech or conduct creates an atmosphere that is sufficiently severe or
    pervasive to alter another employee's working conditions. See Harris v. Forklift Systems, Inc.,
    
    510 U.S. 17
    , 21-22, 
    114 S. Ct. 367
    , 370-71, 
    126 L. Ed. 2d 295
     (1993). As discussed infra, n.13,
    we conclude that Title VII standards of liability, borrowed from the employment context, do not
    control our resolution of this case. Nevertheless, for purposes of our discussion of appellant's
    claim, we construe the complaint to allege that G.F.'s speech or conduct created an atmosphere
    that was sufficiently hostile or abusive to alter the conditions of LaShonda's learning
    environment.
    
                                                      
    6 F. Supp. 1437
    , 1438 (S.D.Tex.1994) ("[A] student cannot bring a hostile environment claim under
    
    Title IX.").
    
            The courts of appeals, however, have been less enthusiastic. The Fifth Circuit has held that
    
    no cause of action exists where a school board merely knew or should have known of peer sexual
    
    harassment and failed to act. See Rowinsky v. Bryan Ind. Sch. Dist., 
    80 F.3d 1006
    , 1016 (5th Cir.),
    
    cert. denied, --- U.S. ----, 
    117 S. Ct. 165
    , 
    136 L. Ed. 2d 108
     (1996). Other circuits have resolved
    
    complaints of student-student sexual harassment without deciding whether a cause of action exists
    
    under Title IX for this alleged harm. See, e.g., Seamons v. Snow, 
    84 F.3d 1226
    , 1232—33 (10th
    
    Cir.1996) (holding that the plaintiff failed to state a valid claim for student-student sexual
    
    harassment because he failed to allege that the harassment in question was on account of his sex);
    
    Murray v. New York Univ. College of Dentistry, 
    57 F.3d 243
    , 250 (2nd Cir.1995) (holding that, even
    
    if Title IX created a private cause of action for sexual harassment by a non-employee of the school,
    
    plaintiff failed to allege that school officials knew or should have known of the harassment); Doe
    
    v. Petaluma City Sch. Dist., 
    54 F.3d 1447
    , 1452 (9th Cir.1994) (holding that a defendant school
    
    counselor was entitled to qualified immunity against a claim that he failed to respond to known
    
    sexual harassment of the plaintiff by other students).
    
            The Supreme Court has not squarely addressed the issue of student-student sexual
    
    harassment. In general, the Court has allowed private plaintiffs to proceed under Title IX only in
    cases that allege intentional gender discrimination by the administrators of educational institutions.
    
    According to the Court, plaintiffs can state a claim under Title IX by alleging that a federally funded
    
    educational institution, acting through its employees, intentionally subjected them to discrimination
    
    in its educational programs or activities. See Cannon v. University of Chicago, 
    441 U.S. 677
    , 709,
    
    
    99 S. Ct. 1946
    , 1964, 
    60 L. Ed. 2d 560
     (1979). For example, where a teacher engaged a student in
    
    sexually oriented conversations, solicited dates from her, forcibly kissed her on the mouth, and thrice
    
    removed her from another class in order to engage in coercive sexual intercourse with her in a
    
    private office at the school, the Court found that the school board could be held liable for his actions.
    
    
                                                       7
    See Franklin v. Gwinnett County Pub. Schs., 
    503 U.S. 60
    , 63-64, 76, 
    112 S. Ct. 1028
    , 1031, 1038,
    
    
    117 L. Ed. 2d 208
     (1992).
    
           Neither the Supreme Court nor this court has ever found, however, that a school board can
    
    be held liable for failing to prevent non-employees from discriminating against students on the basis
    
    of sex. Appellant does not allege that any employee of the Board intentionally discriminated against
    
    LaShonda by personally participating in G.F.'s offensive conduct toward her. Rather, appellant
    
    alleges that the Board violated Title IX by failing adequately to respond to LaShonda's complaints.
    
    Neither the Supreme Court nor this court has considered whether a Title IX plaintiff can proceed
    
    under this theory. In short, by seeking direct liability of the Board for the wrongdoing of a student,
    
    appellant argues for an extension of liability under Title IX. We examine the legislative history of
    
    Title IX to determine whether Congress intended this provision to reach appellant's allegations.
    
                                                     A.
    
           The provision now known as Title IX emerged from a flurry of bills regarding public
    
    education. In June and July 1970, the House Subcommittee on Education of the House Committee
    
    on Education and Labor, under the leadership of Representative Edith Green, held hearings on
    
    gender discrimination in federally funded educational programs. See Discrimination Against
    
    Women: Hearings on Section 805 of H.R. 16098 Before the Special Subcomm. on Education of the
    
    House Comm. on Education and Labor, 91st Cong., 2d Sess. (1970) [hereinafter House Hearings
    ]. None of the testimony before Representative Green's subcommittee concerned student-student
    
    sexual harassment or related issues, such as school discipline. Instead, the subcommittee's work
    
    focused on eliminating gender discrimination in school admissions and in the employment decisions
    
    of school administrators.
    
           By 1970, section 703 of the Civil Rights Act of 1964 already prohibited gender
    
    discrimination in employment. See Civil Rights Act of 1964, Pub.L. No. 88-352, § 703, 78 Stat.
    
    
    
    
                                                      8
    241, 255 (1964) (codified at 42 U.S.C. § 2000e-2 (1994)) ("Title VII").7 Title VII, however, did not
    
    apply to educational institutions. See § 702, 78 Stat. at 255 (codified as amended at 42 U.S.C. §
    
    2000e-1 (1994)). Similarly, section 601 of the Civil Rights Act prohibited racial discrimination by
    
    all recipients of federal funding. See § 601, 78 Stat. at 252 (codified at 42 U.S.C. § 2000d (1994))
    
    ("Title VI").8 Title VI did not ban gender discrimination by recipients of federal funding.
    
           To fill this gap in antidiscrimination legislation, the subcommittee drafted a proposed
    
    amendment to H.R. 16098, 91st Cong. (1970). This amendment would have applied to schools the
    
    non-discrimination requirements of Title VII and added "sex" to the types of discrimination banned
    
    by Title VI. See House Hearings, supra, at 1. In other words, the subcommittee's amendment was
    
    designed to bridge the gap between Title VII and Title VI. The amendment, however, never reached
    
    the House floor. See North Haven Bd. of Educ. v. Bell, 
    456 U.S. 512
    , 523 n. 13, 
    102 S. Ct. 1912
    ,
    
    1919, n. 13, 
    72 L. Ed. 2d 299
     (1982).
    
           On April 6, 1971, a new education bill was introduced in the House. See H.R. 7248, 92nd
    
    Cong. (1971). This bill contained a provision similar to the amendment proposed by Representative
    
    Green's subcommittee nearly one year earlier.         Title X of H.R. 7248 prohibited gender
    
    discrimination in any education program or activity receiving federal financial support. H.R.Rep.
    
    No. 92-554, at 108 (1972), reprinted in 1972 U.S.C.C.A.N. 2462, 2511-12. The House report on
    
    H.R. 7248 described this provision as a response to discriminatory admissions policies and
    
    employment practices at federally funded schools. See id. Once again, neither the House report nor
    
    the underlying testimony discussed student-student sexual harassment.
    
    
    
       7
        Title VII states, "It shall be an unlawful employment practice for an employer ... to
    discriminate against any individual with respect to ... compensation, terms, conditions, or
    privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1)
    (1994).
       8
        Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or
    national origin, be excluded from participation in, be denied the benefits of, or be subjected to
    discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C.
    § 2000d (1994).
    
                                                     9
           While the House bill remained in committee, the Senate was considering a similar education
    
    bill. See S. 659, 92nd Cong. (1971). The Senate bill emerged from the Senate Committee on Labor
    
    and Public Welfare on August 3, 1971, without any antidiscrimination provision at all.
    
    Consequently, on August 5, 1971, Senator Birch Bayh introduced on the Senate floor an amendment
    
    to the committee's version of S. 659. See 117 Cong. Rec. 30,156. (1971). His amendment, like the
    
    House provision drafted by Representative Green's subcommittee, extended the antidiscrimination
    
    provisions of the Civil Rights Act of 1964 to gender discrimination by federally funded "institutions
    
    of higher learning."9 See id. at 30,155. In defending his amendment, Senator Bayh did not discuss
    
    student-student sexual harassment, nor did he discuss school discipline. He focused on gender
    
    discrimination in school admissions and employment opportunities for female teachers. See id. at
    
    30,155-56. In any event, the Senate rejected Bayh's amendment as non-germane, id. at 30,415, and
    
    the Senate passed S. 659 on August 6, 1971, without an antidiscrimination provision.
    
           On November 3, 1971, the House began consideration of S. 659, as passed by the Senate.
    
    The House "amended" the Senate bill by striking virtually the entire contents of S. 659 and replacing
    
    it with the contents of H.R. 7248, including the antidiscrimination provision. See S.Rep. No. 92-
    
    604, at 1 (1972), reprinted in 1972 U.S.C.C.A.N. 2595, 2595. The House made this change without
    
    official comment and passed its version of S. 659 on November 4, 1971. See 117 Cong. Rec. at
    
    30,882.
    
           On November 24, 1971, the Senate, by unanimous consent, referred the House version of
    
    S. 659 back to the Committee on Labor and Public Welfare, which proceeded to amend the House
    
    version to conform to the original Senate version. See S.Rep. No. 92-604, at 1-2 (1972), reprinted
    
    in 1972 U.S.C.C.A.N. 2595, 2595-96.         Once again, the committee did not discuss gender
    
    discrimination at all, much less sexual harassment among students. On February 7, 1972, the Senate
    
    
       9
        Senator Bayh's first amendment provided, "No person ... shall, on the ground of sex, ... be
    subject to discrimination under any program or activity conducted by a public institution of
    higher education, or any school or department of graduate education, which is a recipient of
    Federal financial assistance for any education program or activity." 117 Cong. Rec. at 30,156.
    
                                                     10
    committee sent its own version of S. 659 back to the floor of the Senate. See 118 Cong. Rec. 2806
    
    (1972).
    
              Once the bill returned to the Senate floor, Senator Bayh again introduced an amendment to
    
    add an antidiscrimination provision.10 See id. at 5802-03. Bayh's proposal was intended to "close[
    
    ] loopholes in existing legislation relating to general education programs and employment resulting
    
    from those programs." Id. at 5803. In support of his amendment, Senator Bayh stated,
    
              we are dealing with three basically different types of discrimination here[:] ... discrimination
              in admission to an institution, discrimination of [sic] available services or studies within an
              institution once students are admitted, and discrimination in employment within an
              institution, as a member of the faculty or whatever.
    
    Id. at 5812. To counter these problems, Senator Bayh proposed a provision he thought would "cover
    
    such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited
    
    exceptions." Id. at 5803. Yet again, no senator mentioned student-student sexual harassment or
    
    school discipline.
    
              The Senate adopted Bayh's second amendment on February 28, 1972. See 118 Cong. Rec.
    
    at 5815 (1972). Because of irreconcilable differences between the House and Senate versions of S.
    
    659, both Houses referred the bill to a conference committee. See S. Conf. Rept. No. 92-798, at 1
    
    (1972). The conference committee reported out a joint bill containing the antidiscrimination
    
    measure now known as Title IX. The committee, however, did not explain its reasons for including
    
    Title IX. The conference bill passed both Houses and was signed into law on June 23, 1972. See 118
    
    Cong. Rec. at 22,702. Throughout this long legislative history, the drafters of Title IX never
    
    discussed student-student sexual harassment or the related issue of school discipline.
    
                                                        B.
    
              While the legislative history of Title IX does not indicate that Congress authorized a private
    
    cause of action for studentstudent sexual harassment, the legislative history does show that Title IX
    
    
       10
         Senator Bayh's second amendment stated, "No person ... shall, on the basis of sex, ... be
    subjected to discrimination under any education program or activity receiving Federal financial
    assistance...." 118 Cong. Rec. at 5803.
    
                                                        11
    was enacted under the Spending Clause of Article I. See U.S. Const. art. I, § 8, cl. 1.11 When
    
    Congress conditions the receipt of federal funding upon a recipient's compliance with federal
    
    statutory directives, Congress is acting pursuant to its spending power. See Guardians Ass'n v. Civil
    
    Serv. Comm'n, 
    463 U.S. 582
    , 598-99, 
    103 S. Ct. 3221
    , 3230-31, 
    77 L. Ed. 2d 866
     (1983) (opinion of
    
    White, J.). The legislative history of Title IX indicates that Congress intended to impose upon
    
    recipients of federal educational assistance a requirement of non-discrimination on the basis of sex.
    
    The Spending Clause authorized Congress to impose this condition.
    
            Representative Green put it succinctly: "If we are writing the law, I would say that any
    
    institution could be all men or all women, but my own feeling is that they do it with their own funds
    
    and not taxpayers' funds." Higher Education Amendments of 1971: Hearings on H.R. 32, H.R.
    
    5191, H.R. 5192, H.R. 5193, and H.R. 7248 Before the Special Subcomm. on Education of the House
    
    Comm. on Education and Labor, 92nd Cong., 1st Sess. 581 (1971). Representative Green also
    
    quoted with approval President Nixon, who had stated, "Neither the President nor the Congress nor
    
    the conscience of the Nation can permit money which comes from all the people to be used in a way
    
    which discriminates against some of the people." 117 Cong. Rec. at 39,257 (1971) (statement of
    
    Rep. Green). To Senator Bayh, the reach of Title IX was clearly restricted to federally funded
    
    institutions. See 118 Cong. Rec. at 5812. In support of Title IX, Senator McGovern stated, "I urge
    
    my colleagues to take every opportunity to prohibit Federal funding of sex discrimination." 117
    
    Cong. Rec. at 30,158. This legislative history clearly shows that Congress intended Title IX to be
    
    
    
    
       11
        Section 8 of Article I provides, in part, that "[t]he Congress shall have [the] Power To ...
    provide for the ... general Welfare of the United States." U.S. Const. art. I, § 8, cl. 1.
    
                                                     12
    a "typical "contractual' spending-power provision."12 Guardians Ass'n, 463 U.S. at 599, 103 S.Ct.
    
    at 3231.
    
            In addition to these indications of congressional intent, similarities between Title IX and
    
    Title VI indicate that Title IX was enacted pursuant to the Spending Clause. As noted above, Title
    
    VI prohibits recipients of federal funding from engaging in race discrimination. In Guardians
    
    Association v. Civil Service Commission, at least six members of the Supreme Court agreed that
    
    Title VI was enacted under the Spending Clause. See 463 U.S. at 598-99, 629, 638, 103 S.Ct. at
    
    3230-31, 3247, 3251; see also Lau v. Nichols, 
    414 U.S. 563
    , 568-69, 
    94 S. Ct. 786
    , 789, 
    39 L. Ed. 2d 1
     (1974) (describing how a school district "contractually agreed to comply with title VI" when it
    
    accepted federal funding).
    
            As Justice White quoted from the legislative history of Title VI, "It is not a regulatory
    
    measure, but an exercise of the unquestioned power of the Federal Government to fix the terms on
    
    which Federal funds shall be disbursed." Guardians Ass'n, 463 U.S. at 599, 103 S.Ct. at 3231
    
    (quoting 110 Cong. Rec. 6546 (1964) (quoting Oklahoma v. Civil Serv. Comm'n, 
    330 U.S. 127
    , 143,
    
    
    67 S. Ct. 544
    , 553, 
    91 L. Ed. 794
     (1947))) (internal quotation marks omitted). Justice White summed
    
    up the legislative philosophy behind Title VI: "Stop the discrimination, get the money; continue
    
    the discrimination, do not get the money." Guardians Ass'n, 463 U.S. at 599, 103 S.Ct. at 3231
    
       12
         The Supreme Court has left open the question of whether Title IX was enacted under the
    Spending Clause. See Franklin, 503 U.S. at 75 n. 8, 112 S.Ct. at 1038 n. 8. One could argue, as
    did the petitioner in Franklin, that Title IX was enacted under § 5 of the Fourteenth Amendment,
    which provides Congress with the authority to enact legislation preventing states from
    "deny[ing] to any person ... the equal protection of the laws." U.S. Const. amend. XIV, § 1, cl.
    4.
    
                    The Equal Protection Clause, however, only protects against action by
            state-sponsored entities. See Shelley v. Kraemer, 
    334 U.S. 1
    , 13, 
    68 S. Ct. 836
    , 842, 
    92 L. Ed. 1161
     (1948). Federal funding does not make a public school a state actor. See
            Blackburn v. Fisk University, 
    443 F.2d 121
    , 123 (6th Cir.1971). Thus, if Title IX had
            been enacted under the Fourteenth Amendment, then the antidiscrimination provision of
            Title IX would not reach federally funded schools that were not state actors. We think
            that the plain language of Title IX commands a different result: no school that receives
            federal funding may discriminate on the basis of gender. Therefore, we conclude that
            Title IX was enacted pursuant to a power that can reach non-state actors as well as state
            actors—the spending power. See Rowinsky, 80 F.3d at 1013 n. 14.
    
                                                    13
    (quoting 110 Cong. Rec. at 1542) (internal quotation marks omitted). This interpretation matches
    
    the plain language of Title VI, which conditions the disbursement of federal funds on the recipient's
    
    agreement not to discriminate on the basis of race. See 42 U.S.C. § 2000d (1994).
    
           The language of Title IX is virtually identical to the language of Title VI. See 117 Cong. Rec.
    
    at 30,156 (statement of Sen. Bayh). The only differences are the substitution of the words "on the
    
    basis of sex" for the words "on the ground of race, color, or national origin" and the insertion of the
    
    word "educational" in front of the words "program or activity." See Grove City College v. Bell, 
    465 U.S. 555
    , 586, 
    104 S. Ct. 1211
    , 1228, 
    79 L. Ed. 2d 516
     (1984) (Brennan, J., concurring in part and
    
    dissenting in part); compare 42 U.S.C. § 2000d with 20 U.S.C. § 1681(a). Not surprisingly, the
    
    Supreme Court has found that "Title IX was patterned after Title VI." Cannon, 441 U.S. at 694, 99
    
    S.Ct. at 1956.
    
           The Supreme Court's study of the legislative history of Title IX has led it to conclude that
    
    the drafters of Title IX intended that courts interpret it in the same way they have interpreted Title
    
    VI. Id. at 696, 99 S.Ct. at 1957. Therefore, we find that Title IX, like Title VI, was enacted under
    
    Congress' power to spend for the general welfare of the United States. See Rosa H. v. San Elizario
    
    Indep. Sch. Dist., 
    106 F.3d 648
    , 654 (5th Cir.1997); Lieberman v. University of Chicago, 
    660 F.2d 1185
    , 1187 (7th Cir.1981), cert. denied, 
    456 U.S. 937
    , 
    102 S. Ct. 1993
    , 
    72 L. Ed. 2d 456
     (1982). We
    
    now consider the implications of this finding.
                                                     III.
    
                                                      A.
    
            When Congress enacts legislation pursuant to the Spending Clause, it in effect offers to form
    
    a contract with potential recipients of federal funding. See Pennhurst v. Halderman, 
    451 U.S. 1
    , 17,
    
    
    101 S. Ct. 1531
    , 1540, 
    67 L. Ed. 2d 694
     (1981). Recipients who accept federal monies also accept the
    
    conditions Congress has attached to its offer. See South Dakota v. Dole, 
    483 U.S. 203
    , 206, 
    107 S. Ct. 2793
    , 2795-96, 
    97 L. Ed. 2d 171
     (1987). A prospective recipient is free to decline a grant of
    
    federal funding. See New York v. United States, 
    505 U.S. 144
    , 168, 
    112 S. Ct. 2408
    , 2424, 120
    
    
                                                      
    14 L. Ed. 2d 120
     (1992). Similarly, a current recipient may withdraw from a federal program and
    
    decline further funding if it so chooses. See Guardians Ass'n, 463 U.S. at 596, 103 S.Ct. at 3229.
    
    The freedom of recipients to decline prospectively or to terminate retrospectively a grant of federal
    
    funding ensures that they will remain responsive to the preferences of their local constituents. See
    
    New York, 505 U.S. at 168, 112 S.Ct. at 2424.
    
            To ensure the voluntariness of participation in federal programs, the Supreme Court has
    
    required Congress to give potential recipients unambiguous notice of the conditions they are
    
    assuming when they accept federal funding. Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1540. A
    
    spending power provision must read like a prospectus and give funding recipients a clear signal of
    
    what they are buying. The Court has explained, "By insisting that Congress speak with a clear
    
    voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of
    
    their participation." Id. With regard to the case at hand, "Congress must be unambiguous in
    
    expressing to school districts the conditions it has attached to the receipt of federal funds." Canutillo
    
    Indep. Sch. Dist. v. Leija, 
    101 F.3d 393
    , 398 (5th Cir.1996), cert. denied, --- U.S. ----, 
    117 S. Ct. 2434
    , 
    138 L. Ed. 2d 195
     (1997).          We therefore consider whether Congress gave the Board
    
    unambiguous notice that it could be held liable for failing to stop G.F.'s harassment of LaShonda.
    
            Appellant and the United States Department of Justice, as amicus curiae, argue that Title
    
    IX gave the Board clear notice of this form of liability. Appellant points to the Supreme Court's
    decision in Franklin. In Franklin, the Court suggested that "th[e] notice problem does not arise in
    
    a case ... in which intentional discrimination is alleged." 503 U.S. at 74-75, 112 S.Ct. at 1037. The
    
    Court stated that the plain language of Title IX imposes on schools a duty not to discriminate on the
    
    basis of sex, and when a school teacher sexually harasses a student, that teacher is discriminating
    
    on the basis of sex. Id. at 75, 112 S.Ct. at 1037. Appellant argues that a school employee is
    
    intentionally discriminating on the basis of sex when he or she fails to prevent one student from
    
    
    
    
                                                       15
    sexually harassing another.13 Hence, appellant asserts that the school board here had sufficient
    
       13
         Appellant and the Department of Justice argue that we should use Title VII standards of
    liability to interpret Title IX. An employer is directly liable under Title VII if it is deliberately
    indifferent to peer sexual harassment in the workplace. See Faragher v. City of Boca Raton, 
    111 F.3d 1530
    , 1538-39 (11th Cir.1997) (en banc). Appellant argues that a school should also be
    liable if it is deliberately indifferent to peer sexual harassment at school.
    
                    The superficial appeal of this argument has attracted the adherence of a few
            courts. See, e.g., Bruneau, 935 F.Supp. at 170-71. These courts have applied Title VII
            standards of liability to Title IX cases simply because (1) Title VII and Title IX both deal
            with sexual harassment and (2) the Supreme Court once cited a Title VII case in
            discussing liability under Title IX, see generally Franklin, 503 U.S. at 75, 112 S.Ct. at
            1037 (quoting Meritor Savings Bank v. Vinson, 
    477 U.S. 57
    , 64, 
    106 S. Ct. 2399
    , 2404, 
    91 L. Ed. 2d 49
     (1986)). See Bruneau, 935 F.Supp. at 170-71.
    
                    However, the Supreme Court has never discussed student-student sexual
            harassment or generally applied Title VII jurisprudence to Title IX cases. Perhaps for
            this reason, some courts that have imposed Title VII-type liability under Title IX have
            refused—without much explanation—to apply all of Title VII jurisprudence to Title IX.
            See, e.g., Bruneau, 935 F.Supp. at 169-70 ("[T]he Court cautions that by holding that
            Title VII legal standards apply to an analysis of Title IX claims, the Court is not holding
            that the entirety of Title VII jurisprudence must be applied to Title IX."). Other courts
            have altogether refused to apply Title VII jurisprudence to Title IX. See, e.g., Rosa H.,
            106 F.3d at 656 ("Franklin 's single citation to Meritor Savings to support the Court's
            conclusion that sexual harassment is sex discrimination does not by itself justify the
            importation of other aspects of Title VII law into the Title IX context.").
    
                    We decline appellant's invitation to use Title VII standards of liability to resolve
            this Title IX case. See Doe v. Petaluma City Sch. Dist., 
    54 F.3d 1447
    , 1450-51 (9th
            Cir.1994). First, Title VII and Title IX are worded differently. If Congress wished Title
            IX to be interpreted like the earlier-enacted Title VII, Congress would have written Title
            IX to read like Title VII. Congress did not. Interpreting the plain language of different
            statutes does not automatically produce the same result simply because both statutes
            proscribe similar behavior.
    
                    Second, Title VII was enacted under the far-reaching Commerce Clause and § 5
            of the Fourteenth Amendment. See E.E.O.C. v. Pacific Press Publ'g Ass'n, 
    676 F.2d 1272
    , 1279 n. 10 (9th Cir.1982). Title IX was not, and consequently its reach is
            narrower.
    
                    Third, the exposition of liability under Title VII depends upon agency principles.
            See Meritor, 477 U.S. at 72, 106 S.Ct. at 2408; Faragher, 111 F.3d at 1534-36. Agency
            principles are useless in discussing liability for student-student harassment under Title
            IX, because students are not agents of the school board. See generally Restatement
            (Second) of Agency § 1 (1958) (defining an agency relationship as one in which the
            principal consents to representation by the agent and the agent consents to control by the
            principal). Therefore, even if employers owe to employees some sort of nondelegable
            duty to eliminate peer harassment in the workplace, see generally id. § 492 (discussing
            employers' duty to provide reasonably safe working conditions for their employees),
            schools owe to students no comparable duty. In short, Title VII jurisprudence does not
    
                                                     16
    notice, for purposes of the Spending Clause, that it could be held liable. We disagree.14
            The terms of Title IX gave educational institutions notice that they must prevent their
    
    employees from themselves engaging in intentional gender discrimination. See Franklin, 503 U.S.
    
    at 75, 112 S.Ct. at 1037. Thus, school administrators cannot deny admission to female applicants
    
    because of their gender. See Cannon, 441 U.S. at 709, 99 S.Ct. at 1964. School administrators
    
    cannot discriminate against teachers on account of sex. See North Haven Bd. of Educ., 456 U.S. at
    
    
    
    
            control the outcome of this case.
       14
        We note that neither this court nor the Supreme Court in Franklin fully addressed the
    question of whether a student can state a claim under Title IX for sexual harassment by a
    teacher—much less whether a student can state a claim under Title IX for sexual harassment by
    another student.
    
                    The defendant school board in Franklin successfully moved the district court to
            dismiss Franklin's Title IX suit on the ground that "compensatory relief is unavailable for
            violations of Title IX," a holding which this court affirmed. Franklin v. Gwinnett County
            Pub. Schs., 
    911 F.2d 617
    , 618 (11th Cir.1990). The school board apparently conceded on
            appeal that the plaintiff's allegations stated a claim under Title IX. See id. at 619.
    
                    Similarly, the school board conceded before the Supreme Court that
            teacher-student sexual harassment violated Title IX. See Brief for Respondents at 2, 7,
            Franklin v. Gwinnett County Sch. Dist., 
    503 U.S. 60
    , 
    112 S. Ct. 1028
    , 
    117 L. Ed. 2d 208
            (1992). The Supreme Court granted certiorari to consider "whether the implied right of
            action under Title IX ... supports a claim for monetary damages." Franklin, 503 U.S. at
            62-63, 112 S.Ct. at 1031. The Court emphasized that "the question of what remedies are
            available under a statute that provides a private right of action is "analytically distinct'
            from the issue of whether such a right exists in the first place." Id. at 65-66, 112 S.Ct. at
            1032. In fact, the Franklin Court rejected the arguments of the United States as amicus
            curiae precisely because those arguments concerned the existence vel non of a cause of
            action for teacher-student sexual harassment, a question which the Court considered
            "irrelevant." Id. at 69, 112 S.Ct. at 1034.
    
                    The Franklin Court discussed the notice element of the Spending Clause solely to
            counter the school board's argument that "the normal presumption in favor of all
            appropriate remedies should not apply because Title IX was enacted pursuant to
            Congress' Spending Clause power." Id. at 74, 112 S.Ct. at 1037. Viewed in this light,
            the Supreme Court's suggestion that teacher-student sexual harassment gives rise to a
            cause of action under Title IX was arguably dicta. We assume that Franklin created a
            cause of action for teacher-student sexual harassment under Title IX, but we are wary of
            extending this assumed holding to student-student sexual harassment. In any event, the
            Court's discussion of this issue does not foreclose our own consideration of whether
            appellant has stated a claim under Title IX.
    
                                                     17
    530, 102 S.Ct. at 1922-23. Teachers cannot sexually harass their students. See Franklin, 503 U.S.
    
    at 74-75, 112 S.Ct. at 1037.
    
            The present complaint, however, does not allege that a school employee discriminated
    
    against LaShonda in any of the foregoing ways. The complaint does not allege, for example, that
    
    Fort, Maples, Pippin, or Querry sexually harassed LaShonda. Rather, the complaint alleges that
    
    these individuals failed to take measures sufficient to prevent a non-employee from discriminating
    
    against LaShonda. We do not think that the Board was on notice when it accepted federal funding
    
    that it could be held liable in this situation.
    
                                                      B.
    
            First, as we have noted, nothing in the language or history of Title IX suggests that Title IX
    
    imposes liability for student-student sexual harassment.15 Second, the imposition of this form of
    
    liability would so materially affect schools' decisions whether to accept Title IX funding that it
    
    would require an express, unequivocal disclosure by Congress. Adopting appellant's theory of
    
    liability, however, could give rise to a form of "whipsaw" liability, under which public schools
    
    would face lawsuits from both the alleged harasser and the alleged victim of the harassment.
    
    Moreover, reasonable public school officials could perceive the likely number of such suits to be
    
    large. Because our endorsement of appellant's theory of liability would alter materially the terms
    
    of the contract between Congress and recipients of federal funding, appellant fails to state a claim
    upon which relief can be granted.
    
            The essence of appellant's complaint is this: once a public school student complains to her
    
    teacher that a classmate has sexually harassed her, the teacher and the school board become subject
    
       15
         The dissent devotes a great deal of attention to whether Congress intended that Title IX
    create a cause of action for student-student sexual harassment. See Post, at 3372-75. We
    seriously doubt whether Congress considered this problem at all when it enacted Title IX, but, in
    any case, the dissent's heavy reliance on its conclusory analysis of the language and history of
    Title IX is largely irrelevant. The question is not whether Congress intended to create a cause of
    action under Title IX for student-student sexual harassment but, rather, whether Congress gave
    school boards notice of this form of liability. In the absence of any supporting legislative
    history, statutory construction of ambiguous language cannot support a finding of notice as
    required by the Spending Clause.
    
                                                      18
    to the threat of liability in money damages under federal law if they can prevent the classmate from
    
    harassing again and fail to do so.16 See, e.g., Bosley, 904 F.Supp. at 1023 ("Once a school district
    
    becomes aware of sexual harassment, it must promptly take remedial action which is reasonably
    
    calculated to end the harassment.") (emphasis added). In practical terms, this means that school
    
    officials would have to isolate an alleged harasser from other students through suspension or
    
    expulsion.
    
            The complaint devotes little attention to what measures the Board could have taken to avoid
    
    liability. The complaint admits that Querry and Fort tried to stop G.F.'s harassment by threatening
    
    him and by separating him from LaShonda within Fort's classroom. Appellant clearly does not
    
    believe that these measures sufficed. As evidence of "deliberate indifference," the complaint also
    
    alleges that the Board failed to create a school sexual harassment policy. It seems unlikely,
    
    however, that the mere existence of such a policy would foreclose liability under appellant's theory
    
    of the case.
    
            Apparently, the appropriateness of the Board's remedial measures depends on whether the
    
    harassment actually ends. The complaint suggests that G.F. should have been "suspended, kept
    
    away from LaShonda, or disciplined in [some] way" after LaShonda complained. The Department
    
    of Justice argues broadly that a school board must take "effective action" in response to an allegation
    
    of harassment. We take these arguments to mean the same thing: a school board must immediately
    
    isolate an alleged harasser from other students to avoid the threat of a lawsuit under Title IX.
    
            Physical separation of the alleged harasser from other students is the only way school boards
    
    can ensure that they cannot be held liable for future acts of harassment. If a school official simply
    
    tells the alleged harasser, "Don't do it again," and the harasser does it again, then the board becomes
    
    susceptible to the argument that it had the power to end the harassment, but failed to do so out of
    
       16
         Private schools that receive federal funding would also be subject to suit under appellant's
    theory of Title IX liability. Private school teachers and administrators, however, would not
    ordinarily be subject to suit under § 1983, as would their public school counterparts, because
    they would not ordinarily be acting under color of state law. See § 1983; see generally supra, n.
    2. Accordingly, we discuss individual liability only with respect to public school employees.
    
                                                      19
    "deliberate indifference." If the official merely transfers the alleged harasser to another classroom,
    
    the board faces the threat of suit for any acts of harassment committed by him in the new
    
    classroom—after all, the school had notice of his dangerous propensities and did not do all it could
    
    to prevent him from harassing his new classmates. Segregating the sexes into two separate programs
    
    within the same school would violate the spirit, if not the letter, of Title IX. Therefore, in practical
    
    terms, to avoid the threat of Title IX liability under appellant's theory of the case, a school must
    
    immediately suspend or expel a student accused of sexual harassment.17
    
            Appellant's standard of liability therefore creates for school boards and school officials a
    
    Hobson's choice: On the one hand, if a student complains to a school official about sexual
    
    harassment, the official must suspend or expel the alleged harasser or the board will face potential
    
    liability to the victim. Moreover, if a public school official with control over the harasser finds out
    
    about his misconduct and fails to isolate him, that official runs the risk of personal liability under
    
    42 U.S.C. § 1983 for depriving the victim of her Title IX rights if the harasser engages in further
    
    abuse.18 See Nicole M., 
    964 F. Supp. 1369
    , 1382; Oona R.-S., 890 F.Supp. at 1462; see also Lillard
    
    v. Shelby County Bd. of Educ., 
    76 F.3d 716
    , 723-24 (6th Cir.1996) (holding that the remedial scheme
    
    of Title IX does not preclude a section 1983 claim based on the same conduct).
    
            On the other hand, if the public school official, presiding over a disciplinary hearing,
    
    suspends or expels the alleged harasser, the school board may face a lawsuit alleging that the official
    acted out of bias—out of fear of suit. The right to a public education under state law is a property
    
       17
         This is the approach, incidentally, that some school boards have already adopted. See, e.g.,
    Tamar Lewin, Kissing Cases Highlight Schools' Fears of Liability for Sexual Harassment, N.Y.
    Times, Oct. 6, 1996, at A22, A22 ("While the recent suspensions of two little boys for kissing
    girls were widely seen as excessive, they highlight the confusion that is sweeping schools as
    educators grapple with a growing fear that they may be sued for failing to intervene when one
    student sexually harasses another.").
       18
        If we were to rule in favor of appellant, Fort, Maples, Pippin, Querry, and Dumas would
    arguably be entitled to qualified immunity against § 1983 liability for their actions in this case.
    See Doe v. Petaluma City Sch. Dist., 
    54 F.3d 1447
    , 1452 (9th Cir.1995). Ruling in favor of
    appellant, however, would deprive future, similarly situated defendants of qualified immunity,
    because it would clearly establish a statutory right of which a reasonable school employee would
    know.
    
                                                      20
    interest protected by the Due Process Clause of the Fourteenth Amendment. See Goss v. Lopez, 
    419 U.S. 565
    , 574, 
    95 S. Ct. 729
    , 736, 
    42 L. Ed. 2d 725
     (1975). Accordingly, students facing a deprivation
    
    of this right must be afforded due process.19 Id. at 579, 95 S.Ct. at 738. A fair hearing in a fair
    tribunal is a basic requirement of due process. In re Murchison, 
    349 U.S. 133
    , 136, 
    75 S. Ct. 623
    ,
    
    625, 
    99 L. Ed. 942
     (1955). The decisionmaker who presides over the hearing must be impartial.20
    
       19
         If Georgia provided a procedure for challenging the impartiality of the school's
    decisionmaker, the alleged harasser would have received all the process to which he was entitled,
    and he would have no claim under the Due Process Clause. See McKinney v. Pate, 
    20 F.3d 1550
    , 1557 (11th Cir.1994) (en banc). Absent such a procedure, he could bring suit in federal
    court under § 1983, alleging that the state failed to accord him the process he was due. Whether
    the alleged harasser repairs to state court or to federal court, however, the disruptive effect on
    school officials, teachers, and students would be the same.
       20
        In his separate opinion, JUDGE CARNES insists that the requirements of the procedural
    component of the Due Process Clause are met when a school disciplinarian affords a student
    faced with suspension an "informal" opportunity to explain his side of the story. See Post, at
    3372-73. JUDGE CARNES' reasoning is correct, as far as it goes, but he focuses on one narrow
    subset of cases—"any suspension of up to ten days." Post at 3372.
    
                    In Goss, the Supreme Court held that, "[a]t the very minimum, ... students facing
            suspension and the consequent interference with a protected property interest must be
            given some kind of notice and afforded some kind of hearing." Id. at 579, 95 S.Ct. at
            738. The kind of notice and the formality of the hearing will depend, of course, on the
            nature and severity of the deprivation the student faces: for example, "due process
            requires, in connection with a suspension of 10 days or less, that the student be given oral
            or written notice of the charges against him and, if he denies them, an explanation of the
            evidence the authorities have and an opportunity to present his side of the story." Id. at
            581, 95 S.Ct. at 740 (emphasis added); see also, e.g., Board of Curators v. Horowitz, 
    435 U.S. 78
    , 86, 
    98 S. Ct. 948
    , 953, 
    55 L. Ed. 2d 124
     (1978) (noting that a college student's
            dismissal for academic reasons necessitates fewer procedural protections than a dismissal
            for disciplinary reasons).
    
                    At the end of its opinion in Goss, however, the Supreme Court stated, "Longer
            suspensions or expulsions for the remainder of the school term, or permanently, may
            require more formal procedures. Nor do we put aside the possibility that in unusual
            situations, although involving only a short suspension, something more than rudimentary
            procedures will be required." Id. at 584, 95 S.Ct. at 741. The Supreme Court left open
            the possibility that a more formal notice and hearing would be required for disciplinary
            actions more serious than ten-day suspensions, and so shall we.
    
                    Furthermore, regardless of the nature of the notice and the quality of the hearing,
            an individual faced with the deprivation of a property interest is entitled to an impartial
            decisionmaker—a requirement JUDGE CARNES seems to discount. See, e.g., Nash v.
            Auburn Univ., 
    812 F.2d 655
    , 665 (11th Cir.1987) ("An impartial decision-maker is an
            essential guarantee of due process."). JUDGE CARNES admits, for example, that a
            public school principal would be impermissibly biased, for purposes of the Due Process
    
                                                     21
    See Withrow v. Larkin, 
    421 U.S. 35
    , 46, 
    95 S. Ct. 1456
    , 1464, 
    43 L. Ed. 2d 712
     (1975); McKinney
    
    v. Pate, 
    20 F.3d 1550
    , 1561 (11th Cir.1994) (en banc).
    
            As we explain above, appellant's theory of the case could impose personal liability on any
    
    public school official who learns of an allegation of harassment and fails to exercise his authority
    
    to prevent a recurrence of the harassment. Were we to adopt appellant's theory of the case,
    
    therefore, public school officials would have a financial incentive to punish alleged student
    
    harassers. A financial incentive may render a decisionmaker impermissibly biased.21 See Gibson
    
            Clause, if the principal "took a bribe from [a] complaining student's parents in return for
            suspending or expelling [an] alleged wrongdoer." Post, at 3373. JUDGE CARNES,
            however, refuses to accept that a principal would be just as impermissibly biased if the
            principal were forced to pay money to a complaining student for not suspending or
            expelling an alleged wrongdoer. We fail to grasp the distinction.
       21
         On page 3373-74 of his separate opinion, JUDGE CARNES leads us through a parade of
    horribles which, he imagines, we have created by suggesting that appellant's theory of the case
    would potentially give public school officials an impermissible financial incentive to punish
    alleged student harassers. The dire consequences he conjures, however, will never come to pass
    precisely because we are not adopting appellant's theory of Title IX liability. Only if we were to
    adopt her theory might public school officials face potential liability under both Title IX and the
    procedural component of the Due Process Clause. But we do not adopt appellant's theory of
    liability.
    
                    With regard to non-school settings, JUDGE CARNES overstates our opinion and
            then criticizes us for the breadth of our holding. He chides us for suggesting that "[a]ll
            federal, state, or local officials called upon to decide what to do in response to one
            person's complaint about another would have a financial incentive to avoid a lawsuit,
            which would disqualify them from making a decision." Post, at 3374. We suggest
            nothing of the kind.
                    Nevertheless, on the merits of his critique, we suppose that all officials in such
            situations could face lawsuits alleging impermissible bias—if none of those officials had
            any form of immunity from suit, which, of course, they do have. Stated differently,
            public decisionmakers have immunity from suit to protect them from the sort of bias
            which might otherwise give rise to violations of the Due Process Clause. Judges, for
            example, have absolute immunity from suit because "the independent and impartial
            exercise of judgment vital to the judiciary might be impaired by exposure to potential
            damages liability." Antoine v. Byers & Anderson, Inc., 
    508 U.S. 429
    , 435, 
    113 S. Ct. 2167
    , 2171, 
    124 L. Ed. 2d 391
     (1993). Similar concerns motivate qualified immunity. See
            generally Harlow v. Fitzgerald, 
    457 U.S. 800
    , 814, 
    102 S. Ct. 2727
    , 2736, 
    73 L. Ed. 2d 396
            (1982) (reasoning that, without qualified immunity, "there is the danger that fear of being
            sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public
            officials], in the unflinching discharge of their duties' " (quoting Gregoire v. Biddle, 
    177 F.2d 579
    , 581 (2nd Cir.1949), cert. denied, 
    339 U.S. 949
    , 
    70 S. Ct. 803
    , 
    94 L. Ed. 1363
            (1950)) (alterations in original)). In fact, as we discuss supra, note 18, the individual
    
                                                     22
    v. Berryhill, 
    411 U.S. 564
    , 579, 
    93 S. Ct. 1689
    , 1698, 
    36 L. Ed. 2d 488
     (1973). Therefore, the
    
    disciplinary measures required to avoid liability under Title IX could subject the school board to the
    
    threat of suit by the disciplined harasser.22
    
            In addition to the threat of this whipsaw liability, schools would face the virtual certainty of
    
    extensive litigation costs. These costs would include not only lawyers fees, but also the burdens
    
    associated with the disruption of the educational process. The litigation we describe would
    
    inevitably involve teachers, students, and administrators in time-consuming discovery and trial
    
    preparation. Schools could reasonably expect to receive from Congress explicit notice of these
    
    consequences. They did not.23
    
    
            defendants in this case would likely be entitled to qualified immunity.
    
                    In sum, we create no new procedural due process rights, as JUDGE CARNES
            asserts. Our opinion does not even suggest that we would have to create such rights if we
            were to uphold appellant's theory of Title IX liability. Rather, our opinion states that this
            form of liability is a logical extension of appellant's theory of the case, and Congress
            gave no notice to public school boards that they would be potentially undertaking this
            form of liability when they accepted federal funding under Title IX.
       22
         All of the foregoing assumes, of course, that the allegations of harassment are true. While
    we hesitate to assume that any allegations of student-student sexual harassment are false, we do
    not doubt that school students will be tempted into mischief by the prospect of swift punishment
    against any classmate whom they accuse of sexual harassment.
    
                     Moreover, public school officials would find such false accusations difficult to
            combat. Under Title VII standards of liability, which the appellant, the United States,
            and the dissent seem anxious to adopt, an employer may be sued for retaliating against an
            employee who complains about sexual harassment. See generally 42 U.S.C. § 2000e-
            3(a) (1994) ("It shall be an unlawful employment practice for an employer ... to
            discriminate against any individual ... because he has made a charge, testified, assisted, or
            participated in any manner in an investigation, proceeding, or hearing under this
            subchapter."). Thus, under the logical implications of appellants theory of Title IX
            liability, a school board could face a lawsuit from the complaining student if it disciplines
            her for bringing a vexatious complaint against a classmate. As discussed in the text, the
            threat of lawsuits under § 1983 against the public school officials themselves would soon
            follow.
       23
         Appellant and the Department of Justice draw our attention to the regulatory activities of the
    Office of Civil Rights of the United States Department of Justice ("OCR"). The OCR issued
    interim guidelines concerning schoolhouse sexual harassment on August 16, 1996. See Sexual
    Harassment Guidance: Peer Sexual Harassment, 61 Fed.Reg. 42,728 (1996). These guidelines
    issued after the alleged harassment of LaShonda. Moreover, at the time of the alleged
    harassment, the code of federal regulations did not discuss student-student sexual harassment.
    
                                                      23
    See 34 C.F.R. § 106.31 (1992). Therefore, OCR's regulations did not put the Board on official
    notice of its potential liability for G.F.'s harassment of LaShonda.
    
                   Nevertheless, appellant and the Department of Justice urge that we defer to the
           OCR's current interpretation of Title IX for purposes of this case. The OCR issued final
           policy guidance on student sexual harassment on March 13, 1997. See Sexual
           Harassment Guidance: Harassment of Students by School Employees, Other Students, or
           Third Parties, 62 Fed.Reg. 12,034 (1997). In this publication, the OCR constructs a
           labyrinth of factors and caveats which simply reinforces our conclusion that the Board
           was not on notice that it could be held liable in the present situation.
    
                  According to the March 13 guidance, schools are liable for failing to eliminate
    
                  sexually harassing conduct (which can include unwelcome sexual advances,
                  requests for sexual favors, and other verbal, nonverbal, or physical conduct of a
                  sexual nature) ... by another student ... that is sufficiently severe, persistent, or
                  pervasive to limit a student's ability to participate in or benefit from an education
                  program or activity, or to create a hostile or abusive educational environment.
    
           Id. at 12,038.
    
                   Because the meaning of this language may not be obvious to school officials, the
           March 13 guidance lists several factors which should be taken into account when a
           student is sent to the office for sexually harassing another student. Among other factors
           and subfactors, the school official should consider the "welcomeness" of the conduct, the
           age of the harasser, the age of the victim, the relationship between the parties, the degree
           to which the conduct was sexual in nature, the duration of the conduct, the frequency of
           the conduct involved, the degree to which the conduct affected the victim's education, the
           pervasiveness of the conduct at the school, the location of the incident, the occurrence of
           any similar incidents at the school, the occurrence of any incidents of gender-based but
           non-sexual harassment, the size of the school, and the number of individuals involved in
           the incident.
    
                   The school official should keep in mind that "in some circumstances, nonsexual
           conduct may take on sexual connotations and may rise to the level of sexual harassment."
           Id. at 12,039. He should also remember that "a hostile environment may exist even if
           there is no tangible injury to the student," and even if the complaining student was not the
           target of the harassment. Id. at 12,041. In addition, the official must recall that a single
           act of student-student harassment can create a hostile environment. See id. Finally, the
           school official must keep in mind that, if he does not kick the alleged harasser out of
           school, and the harasser misbehaves again, the official could be personally liable if a jury
           concludes, after the fact, that he could have done more to prevent the harasser from
           harming his classmates.
    
                   The foregoing analysis assumes, of course, that the school official actually knew
           of the complaint against the harasser and summoned him to the front office. According
           to the OCR, however, the official may be liable even if he did not know about the
           harassment: the official may cause the school to violate Title IX if he failed to exercise
           "due care" in discovering the misconduct. See id. at 12,042. The foregoing does not
           address the lawsuit that the harasser's parents will file when the school official summarily
    
                                                    24
                                                     C.
    
            School boards could reasonably believe that this form of whipsaw liability would arise in a
    
    substantial number of cases. According to a 1993 survey of American public school students, 65%
    
    of students in grades eight to eleven were victims of student-student sexual harassment. See
    
    American Ass'n of Univ. Women Educ. Found., Hostile Hallways: The AAUW Survey on Sexual
    
    Harassment in American Schools 11 (1993) [hereinafter AAUW Survey]. Extrapolating from
    
    Department of Education statistics, roughly 7,784,000 public school students in grades eight through
    
    eleven would consider themselves to be victims of student-student sexual harassment.24
    
    Furthermore, 59% of students (including 52% of female students) in grades eight to eleven
    
    responded that they had sexually harassed other students. See AAUW Survey, supra, at 11-12. Thus,
    
    if this survey is accurate, around 7,177,000 public school students in grades eight to eleven, male
    
    and female, would admit to sexually harassing other students.
    
            We do not adopt these statistics as our own definitive guide to the extent of sexual
    
    harassment in America's public schools. We draw attention to these figures only to illustrate what
    
    school boards would have to consider in deciding whether to accept federal funding under Title IX.
    
    The AAUW Survey could suggest to reasonable public school officials that a substantial number of
    
    lawsuits will be brought under appellant's theory of Title IX liability. Therefore, imposition of this
    
    
    
    
            suspends him. According to appellant and the Department of Justice, the Board received
            clear notice of this form of liability when it accepted federal funding under Title IX. We
            think not.
       24
         To calculate the number of purported student victims of harassment in the nation, we
    multiplied the percentage of victims provided by the AAUW Survey by the total number of
    students enrolled in public schools in grades eight to eleven during the 1992-1993 school year.
    We obtained the enrollment statistics from the world-wide-web home page of the Department of
    Education. See, e.g., U.S. Dep't of Educ., Enrollment in Public Elementary and Secondary
    Schools, by Grade: Fall 1980 to Fall 1994 (last modified Mar. 1996) http://nces01.ed.gov/nces/
    pubs/D96/D96T042.html> [hereinafter U.S. Education ]. We used the same process to calculate
    the total number of professed student harassers in the nation.
    
                                                     25
    form of liability would materially affect their decision whether to accept federal educational
    
    funding.25
    
            An enactment under the Spending Clause must read like a prospectus. Just as a prospectus
    
    must unambiguously disclose all material facts to a would-be purchaser, an enactment under the
    
    Spending Clause must unambiguously disclose to would-be recipients all facts material to their
    
    decision to accept Title IX funding. The threat of whipsaw liability in a substantial number of cases
    
    would materially affect a Title IX recipient's decision to accept federal funding, yet Congress did
    
    not provide unambiguous notice of this type of liability in the language or history of that statute.
    
    We will not alter retrospectively the terms of the agreement between Congress and recipients of Title
    
    IX funding.26
    
       25
          In JUDGE CARNES' separate opinion, he characterizes our use of statistics as an attempt
    "to establish that student-student sexual harassment is such a widespread and extensive problem
    that a different holding of this case would impose massive liability upon school officials and
    boards." Post, at 3375. As we indicate in the text, this is not our objective at all. We cite these
    statistics because school boards may consider them to be a valid indicator of the amount of
    litigation that they will face. If a lawyer for the Monroe County School Board were trying to
    advise the Board about the potential costs and benefits of accepting federal funding, would it not
    matter to that lawyer whether accepting federal funds would give rise to a few lawsuits or
    thousands of lawsuits?
    
                     JUDGE CARNES suggests that the AAUW Survey overstates the actual number
            of lawsuits that could be brought under appellant's theory of Title IX liability. We agree
            that the survey did not use the same definition of student-student sexual harassment as
            our case law dictates, but statistical purity would arguably require a jury verdict agreeing
            with the allegations of each student who claimed to have been harassed. In any event,
            there are plenty of reasons for public school officials to overlook the statistical flaws in
            the AAUW Survey when it is their own pocketbooks—not those of federal judges—that
            are at stake.
       26
         As noted above, the purpose of enactments under the Spending Clause is "to further
    [Congress's] broad policy objectives by conditioning receipt of federal moneys upon compliance
    by the recipient with federal statutory and administrative directives." Fullilove v. Klutznick, 
    448 U.S. 448
    , 474, 
    100 S. Ct. 2758
    , 2772, 
    65 L. Ed. 2d 902
     (1980) (opinion of Burger, C.J.). Congress
    uses the spending power "to induce governments and private parties to cooperate voluntarily
    with federal policy." Id. If no one chooses to receive federal funds under a proposed legislative
    program, Congress's intent would be frustrated and its policy objectives would remain
    unfulfilled. See Rowinsky, 80 F.3d at 1013.
    
                    Prospective recipients will decline federal funding and current recipients will
            withdraw from federal programs if the cost of legislative conditions exceeds the amount
            of the disbursement. Federal funding represents only 7% of all revenues for public
    
                                                     26
                                                      IV.
    
           We condemn the harm that has befallen LaShonda, a harm for which Georgia tort law may
    
    indeed provide redress. Appellant's present complaint, however, fails to state a claim under Title
    
    IX because Congress gave no clear notice to schools and teachers that they, rather than society as
    
    a whole, would accept responsibility for remedying student-student sexual harassment when they
    
    chose to accept federal financial assistance under Title IX. Accordingly, the judgment of the district
    
    court is AFFIRMED.
    
    EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges, concur in the
    court's opinion with the exception of Parts III.B and III.C.
    
           BLACK, Circuit Judge, concurring:
    
           I concur in the Court's judgment and, with the exception of Parts IIIB and IIIC, join in its
    
    opinion. I write separately only to respond to the dissent's contention that the Court's disposition
    
    contravenes the "plain meaning" of Title IX. It is axiomatic that the statutory language is the starting
    
    point for interpreting the meaning of a statute. Ardestani v. INS, 
    502 U.S. 129
    , 135, 
    112 S. Ct. 515
    ,
    
    519, 
    116 L. Ed. 2d 496
     (1991); United States v. McLemore, 
    28 F.3d 1160
    , 1162 (11th Cir.1994). If
    
    the statutory language is unambiguous, the courts must enforce the statute as written absent a
    
    clearly-expressed legislative intent to the contrary. United States v. Turkette, 
    452 U.S. 576
    , 580, 
    101 S. Ct. 2524
    , 2527, 
    69 L. Ed. 2d 246
     (1981); Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
    
    
    447 U.S. 102
    , 108, 
    100 S. Ct. 2051
    , 2056, 
    64 L. Ed. 2d 766
     (1980); RJR Nabisco, Inc. v. United
    
    
           elementary and secondary schools in the United States. During the 1992-1993 school
           year, for example, American schools received $17,261,252,000 from the federal
           government out of a total budget of $247,626,168,000. See U.S. Education, supra, at
           .
    
                   School authorities must weigh the benefit of this relatively small amount of
           funding against not only the threat of substantial institutional and individual liability—as
           suggested by the AAUW Survey—but also the opportunity costs of devoting to litigation
           hours that might otherwise be spent running their schools. Because harassment of the
           sort experienced by LaShonda is rarely observed directly by school officials, Title IX
           claims of the sort envisioned by appellant would require the time-consuming testimony
           of numerous student witnesses. Imposing the liability of the sort envisioned by appellant
           could induce school boards to simply reject federal funding—in contravention of the will
           of Congress. See Rowinsky, 80 F.3d at 1013.
    
                                                      27
    States, 
    955 F.2d 1457
    , 1460 (11th Cir.1992). On the other hand, where the statutory language is
    
    ambiguous, then a court may look to legislative history in an effort to discern the intent of Congress.
    
    See Royal Caribbean Cruises, Ltd. v. United States, 
    108 F.3d 290
    , 293 (11th Cir.1997); United
    
    States ex rel. Williams v. NEC Corp., 
    931 F.2d 1493
    , 1498 (11th Cir.1991).
    
            The present case requires us to decide whether Title IX prescribes liability for the failure of
    
    a school board to prevent a student from discriminating against a classmate on the basis of sex. The
    
    text of 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 (1994). As
    
    the dissent recognizes, "[t]he absolute prohibition contained in the text is framed solely in terms of
    
    who is protected." The statute simply does not specify what relationship, if any, the perpetrator of
    
    an underlying act of sexual harassment must have to the federally-funded educational institution to
    
    trigger Title IX liability.
    
            The dissent nevertheless divines from congressional silence an unambiguous endorsement
    
    of the proposition that "[t]he identity of the perpetrator is simply irrelevant." Under this conception
    
    of Title IX, liability presumably would attach anytime the school board failed to prevent
    
    anyone—student, teacher, parent, neighborhood resident—from discriminating on the basis of sex
    
    to the extent that such action inhibited a student from realizing the full benefits of federally-funded
    education. In my view, the text of Title IX permits at least equally plausible constructions that
    
    would circumscribe liability more narrowly. Specifically, the text of Title IX may be interpreted
    
    to impose liability only when the school board or one of its agents bears direct responsibility for
    
    discriminating on the basis of sex, as would be the case had any of Lashonda Davis' teachers
    
    participated in the sexual harassment she was forced to endure. The absence of any reliable textual
    
    indication regarding which of these constructions Congress envisioned invites consideration of
    
    legislative history and the congressional power from which the statute emanates in an effort to
    
    discover congressional intent. The Court's approach thus represents an entirely appropriate effort
    
    
                                                      28
    to effectuate congressional will in the absence of unambiguous textual guidance, not, as the dissent
    
    appears to suggest, strident judicial refusal to enforce clearly expressed legislative intent.
    
           CARNES, Circuit Judge, concurring:
    
           I concur in the holding that Title IX does not create a cause of action against public school
    
    boards or officials for failure to prevent or remedy student-student sexual harassment. In my view,
    
    that holding is correct for essentially those reasons stated in Parts I, II, III A, and IV of Judge
    
    Tjoflat's opinion, and I join those parts of it, which constitute the opinion of the Court. However,
    
    for the reasons explained below, I do not join Parts III B and C of Judge Tjoflat's opinion, which
    
    express only his own views.1
    
                                                      I.
    
           The "Hobson's choice" or "whipsaw liability" discussion in Part III B of the opinion is based
    
    upon a fundamentally erroneous premise. If school officials could be sued for failing to prevent or
    
    remedy student-student sexual harassment, that part of the opinion says, the potential liability would
    
    amount to a financial incentive to punish the accused harassers, which would or could render school
    
    officials impermissibly biased and require recusal. Of course, a student does have a property interest
    
    in a public education which is protected by the Due Process Clause of the Fourteenth Amendment.2
    
       1
        Parts I, II, III A, and IV of Judge Tjoflat's opinion constitute the opinion of the Court,
    because those parts are joined by six of the ten judges participating in this decision. By contrast,
    none of the other nine judges participating in this decision have joined Parts III B and C of that
    opinion.
       2
        The nature and extent of the protection afforded the property interest in a public education,
    the due process requirements attendant to its loss, depends upon the severity of the loss. In Goss
    v. Lopez, 
    419 U.S. 565
    , 
    95 S. Ct. 729
    , 
    42 L. Ed. 2d 725
     (1975), the Supreme Court held that, with
    any suspension of up to ten days, all the Due Process Clause requires is for the student to "be
    given oral or written notice of the charges against him and, if he denies them, an explanation of
    the evidence the authorities have and an opportunity to present his side of the story." 419 U.S. at
    581, 95 S.Ct. at 740; accord Arnold v. Board of Educ., 
    880 F.2d 305
    , 318 (11th Cir.1989). The
    Supreme Court said in Goss that "[i]n the great majority of cases the disciplinarian may
    informally discuss the alleged misconduct with the student minutes after it has occurred," and
    "[w]e hold only that, in being given an opportunity to explain his version of the facts at this
    discussion, the student first be told what he is accused of doing and what the basis of the
    accusation is." 419 U.S. at 582, 95 S.Ct. at 740. The Court has since explained that all Goss
    requires before a suspension is an "informal give and take" in order to provide the student "the
    opportunity to characterize his conduct and put it in what he deems the proper context." Board
    
                                                      29
    And, due process does require that a decision depriving the student of that property interest be made
    
    by someone who does not have a pecuniary interest in having the student suspended or expelled.
    
    To take an extreme example, regardless of any other process afforded, due process would be violated
    
    if a principal took a bribe from the complaining student's parents in return for suspending or
    
    expelling the alleged wrongdoer. But it is an entirely different matter to suggest, as Part III B of the
    
    opinion does, that a school official's potential liability to the complaining student if that official fails
    
    to take legally required action amounts to a "financial incentive" which renders that official
    
    "impermissibly biased" and requires recusal from deciding what action, if any, is required in the
    
    circumstances. As authority for that novel proposition, the opinion cites only Gibson v. Berryhill,
    
    
    411 U.S. 564
    , 579, 
    93 S. Ct. 1689
    , 1698, 
    36 L. Ed. 2d 488
     (1973). The Gibson decision provides no
    
    support for the proposition, because it does not hold, or even imply, that an official's potential
    
    liability for failing to properly exercise decisionmaking authority constitutes a "financial incentive"
    
    which renders the official "impermissibly biased."
    
            Gibson involved a state optometry board composed exclusively of private practitioners who
    
    were in competition with corporate employee optometrists. Those board members had a substantial
    
    pecuniary interest in excluding from the market corporate employee optometrists, who accounted
    
    for nearly half of all the practicing optometrists in the state. The Supreme Court affirmed the district
    
    court's holding that the private practitioner's pecuniary interest in eliminating competition
    
    disqualified them from deciding whether the practice of optometry by corporate employees as such
    
    constituted unprofessional conduct justifying license revocation. See 411 U.S. at 578-79, 93 S.Ct.
    
    at 1698. That holding does not support the proposition that any time an official can be sued for
    
    failing to respond properly to a complaint that official is disqualified from making a decision about
    
    how to respond to the complaint.
    
    
    of Curators v. Horowitz, 
    435 U.S. 78
    , 86, 
    98 S. Ct. 948
    , 953, 
    55 L. Ed. 2d 124
     (1978) (quoting
    Goss, 419 U.S. at 584, 95 S.Ct. at 741); accord, e.g., C.B. v. Driscoll, 
    82 F.3d 383
    , 386 (11th
    Cir.1996) ("The dictates of Goss are clear and extremely limited."). These "rudimentary
    precautions," to use the description from Goss itself, 419 U.S. at 581, 95 S.Ct. at 740, are a far
    cry from a due process tribunal hearing attendant to some property interest deprivations.
    
                                                        30
           If that suggested proposition were the law of this circuit—and thankfully it is not—no school
    
    official could ever discipline a student for any alleged misconduct as a result of another student's
    
    complaint without violating the due process rights of the disciplined student. The reason such an
    
    imposition of discipline would violate due process is that such an official would always have a
    
    financial incentive, under that view, to believe the complaint in order to avoid a lawsuit filed by the
    
    complainant. The ramifications of such a rule would extend to discipline for any type of
    
    misconduct, because there is no principled basis on which a distinction can be drawn between
    
    discipline following a complaint about sexual harassment and that following a complaint about any
    
    other type of misconduct.
    
           Nor is there any principled basis by which such an automatic disqualification rule could be
    
    confined to school settings. It would also apply outside the Title IX context; for example, in jail
    
    and prison settings. If one prisoner complains to a jailer or warden about what some other prisoner
    
    has done to him, under Judge Tjoflat's view that official will have a financial interest in avoiding a
    
    lawsuit from the complaining prisoner (alleging deliberate indifference), and such an interest
    
    disqualifies the official from making any disciplinary decision about the complaint. So, not only
    
    would the disqualification rule be automatic, it also would be universal. No one would be able to
    
    decide any disciplinary matters in schools, in prisons, or in any other setting within the purview of
    
    the Due Process Clause. All federal, state, or local officials called upon to decide what to do in
    response to one person's complaint about another would have a financial incentive to avoid a
    
    lawsuit, which would disqualify them from making a decision. That cannot be the law, and it is not
    
    the law.
    
           Judge Tjoflat's response to having these flaws in his reasoning pointed out is contained in
    
    footnote 21 of his opinion, which will reward close scrutiny. First, that footnote assures us that we
    
    should not worry about the far-reaching ramifications of the suggestion that potential liability equals
    
    disqualifying bias, because this Court is holding that school officials have no liability under Title
    
    IX for student-student sexual harassment. Apparently forgotten is the assurance, in Part IV of the
    
    
                                                      31
    opinion, that "Georgia tort law may indeed provide redress" for the very same conduct. If a school
    
    official's potential liability for not acting properly is a disqualifying financial interest, it matters not
    
    whether that potential liability is posed by Title IX or by state tort law. The opinion does not, and
    
    logically cannot, suggest otherwise. Instead, it adopts a head-in-the-sand approach which ignores
    
    everything but Title IX, as though that were the only potential source of liability for school officials
    
    who are called upon to decide what to do about student-student sexual harassment complaints.
    
            With its head comfortably in the sand, the opinion also ignores entirely the obvious
    
    implications of its proposition for student-student disputes involving allegations of misbehavior
    
    other than sexual harassment. Part of the quotidian business of teachers and principals is resolving
    
    disputes in which one student alleges another has threatened, hit, stolen from, or otherwise
    
    mistreated him or her. Some of those disputes pose potential liability for the teacher or principal
    
    who fails to act. For example, a school official who fails to take appropriate action to protect a
    
    student from a threatened thrashing at the hands of another student may have to answer in a state
    
    court tort action. Under the reasoning contained in Part III B of the opinion, that potential liability
    
    would prevent any school official from deciding what to do about such a complaint, because that
    
    official's potential liability to the complaining student would amount to a disqualifying financial
    
    bias. A careful reading of the opinion reveals that it fails to explain why that result would not
    
    necessarily follow from its suggested reasoning.
            As to settings outside the school context, footnote 21 of the opinion offers two responses to
    
    this criticism. First, it simply denies—"We suggest nothing of the kind"—that its proposition about
    
    potential liability equaling disqualifying bias would have any application outside the schoolhouse.
    
    That ipse dixit assertion has as little reasoning behind it as the proposition itself. The opinion fails
    
    to offer any reason why the automatic bias theory it suggests would not apply in non-school
    
    contexts, because there is no reason. The right to an unbiased decision maker is a rudiment of due
    
    process, which is as applicable outside schools as within them.
    
    
    
    
                                                        32
            Apparently realizing that the ipse dixit approach will not shield the naked illogic of its
    
    position from view, the opinion attempts to camouflage the problem with talk of immunity. "Don't
    
    worry," we are told, officials in non-school settings have "immunity from suit" which removes any
    
    potential liability for failing to decide for the complaining party, and any financial incentive to favor
    
    that party disappears along with the potential liability. The thinnest stripe of the attempted
    
    camouflage is the opinion's reference to judicial immunity. We are not talking about judges. We
    
    are talking about the myriad of federal, state, and local non-judicial officials who are regularly called
    
    upon to decide what to do in response to one person's complaint about another. Jailers, wardens, and
    
    other corrections officials are but a few examples. These people are not judges. They do not enjoy
    
    judicial immunity.
    
            Even so, the opinion says, there is qualified immunity. There are three problems with the
    
    assertion that the availability of qualified immunity distinguishes non-school officials from school
    
    officials by removing any threat of lawsuit by a complaining party dissatisfied with an official's
    
    resolution of a complaint outside the school setting. First, qualified immunity is not absolute.
    
    Second, qualified immunity does not shield officials from liability grounded on state law. Third,
    
    and most obviously, the doctrine of qualified immunity is the same for school officials as for
    
    non-school officials. If that doctrine shields non-school officials from threat of lawsuit sufficiently
    
    to remove any disqualifying financial incentive to decide for a complainant, it does exactly the same
    for school officials. Thus, with its talk of qualified immunity, Part III B of the opinion has
    
    succeeded in reaching around and biting itself in the back. If what the plurality opinion says about
    
    the due process implications of qualified immunity is true, then the opinion has disproven the very
    
    proposition it is seeking to defend.
    
                                                       II.
    
            Part III C of Judge Tjoflat's opinion attempts to establish that student-student sexual
    
    harassment is such a widespread and extensive problem that a different holding in this case would
    
    impose massive liability upon school officials and boards. In its words, agreeing with appellant's
    
    
                                                       33
    theory of liability would give rise to "thousands of lawsuits." Tjoflat Opinion at n.25. The factual
    
    premise of that reasoning is based entirely upon one survey report. See American Ass'n of Univ.
    
    Women Educ. Found., Hostile Hallways: The AAUW Survey on Sexual Harassment in American
    
    Schools (1993) (hereinafter "AAUW Survey Report ").
    
            The AAUW Survey Report was not the subject of an evidentiary hearing in the district court,
    
    nor has it been examined in a hearing in any other court insofar as we know. Neither party to this
    
    appeal even mentioned the survey in the briefs; it was discussed only in one amicus brief. In
    
    general, we should be reluctant to incorporate into our reasoning the results of a survey that has not
    
    been examined critically or tested in a trial or evidentiary hearing, the time-honored and proven
    
    methods our system of justice uses to determine material facts.
    
            Beyond the general problems with using surveys in judicial decision making, there are
    
    specific reasons why employment of this particular survey for the purpose Judge Tjoflat uses it in
    
    Part III C of his opinion is ill-advised. That purpose, of course, is to show student-student sexual
    
    harassment is so rampant that if a cause of action existed for it the resulting flood of litigation would
    
    inundate our public school systems, or at least school officials would have a basis for fearing that
    
    result—the basis being the survey.
    
            The first reason we ought to be especially cautious about such a use of this particular survey
    
    is that its purported findings are, in the words of the sponsors of the survey: "startling," and for
    some "the results will be surprising and shocking." Id. at 2. The reason for such descriptions is that
    
    it is difficult to believe that 65 percent of all eighth through eleventh grade students have been
    
    sexually harassed by other students, and that half of all female and male students in those grades are
    
    self-professed sexual harassers. We ought to be reluctant to accept as fact, or assume that school
    
    officials would accept as fact, such "surprising and shocking" statistics based upon a single survey
    
    of only a tiny fraction of one percent of the total number of students in four grades.
    
            Even a cursory look at the survey report gives more reason to be dubious about the opinion's
    
    use of the report. The survey asked students how often "[d]uring your whole school life" has anyone
    
    
                                                       34
    "when you did not want them to" done any of the following things, and it then provided a list of
    
    behavior the survey defined as sexual harassment. See id. at 5. Some behavior on that list clearly
    
    constitutes sexually harassing behavior of the most serious type. But included in the list is other
    
    behavior that is less serious and far less likely to lead to complaints and litigation, which is what
    
    Judge Tjoflat uses the survey to predict (or posits that school boards will use it to predict). For
    
    example, included in the survey's definitional list of sexual harassment was any instance in which
    
    another student: "Made sexual comments, jokes, gestures, or looks;" or "[s]pread sexual rumors
    
    about you;" or "[s]aid you were gay or lesbian." Id. at 5. Remember that a single unwelcome
    
    instance of such activity, during the student's entire school life, renders that student a victim of
    
    sexual harassment for purposes of the survey.
    
           A student who has ever been looked at by another student in an unwelcome way perceived
    
    to be sexual is defined by the survey to be a sexual harassment victim. Any student ever called gay
    
    or lesbian is also a sexual harassment victim in the survey's view. Any time unwelcome rumors are
    
    spread about a student having any type of sexual activity (presumably including kissing) with
    
    another student, those students are sexual harassment victims as the survey defines it. To take one
    
    final example of how the total incidence of "sexual harassment" reported overstates legally
    
    actionable incidents of sexual harassment, consider that the survey definition includes incidents in
    
    which someone "[f]lashed or "mooned' you." Id. At 5. Suppose that a student at a school function
    (which the survey defines to include school sporting events and field trips) "moons" all the students
    
    in attendance, or all those from a rival school. A single episode of that misbehavior—which is not
    
    nice and certainly should not occur, but has been known to happen—could make sexual harassment
    
    victims, as the survey defines the term, out of scores or even hundreds of students. Yet, such an
    
    incident is extremely unlikely to result in litigation against the school.
    
           It is also worthy of note that the survey asked students whether the behavior it defined as
    
    sexual harassment had happened to them "[d]uring your whole school life." Id. at 5. Therefore, the
    
    
    
    
                                                      35
    65 percent figure reflects those who have experienced that behavior at any time during any school
    
    year of their life. It does not purport to be annual data.
    
            Finally, Part III C of the opinion fails to point out that the survey also asked the students if
    
    any of them who had been sexually harassed, as that term was defined in the survey, had told a
    
    teacher about the experience. Only 7 percent of the sixty-five percent had. See AAUW Survey
    
    Report at 14. Whatever the reasons for not reporting such behavior to a teacher, the failure to do
    
    so in all but the rarest instances has obvious implications for the existence of causes of action against
    
    schools or the likelihood of actual litigation.
    
            The opinion attempts to deflect criticism about misuse of the survey by suggesting that while
    
    the opinion's author does not necessarily think that the survey is a valid indicator of how much
    
    student-student sexual harassment occurs, school boards might think that the survey is and reject
    
    federal funding as a result of it. With all due respect, there is no reason to believe that school boards
    
    would be less likely than federal judges to see the flaws in such an interpretation of the survey.
    
    School boards know more about what is going on in their schools than we do, and they can be
    
    expected to critically examine any survey before using it as a basis for turning down federal funding
    
    for their schools. Rather than hiding behind speculation about how school board officials might
    
    interpret the survey, the opinion ought to face up to the flaws in its suggested use of the survey.
    
            Upon its release, the sponsors of the survey stated that they were "confident that the results
    of this survey will become a focal point on the agendas of policy makers, educators, and others
    
    concerned with the education of America's children." Id. at 21. Their confidence about how the
    
    survey would be used might be undermined by Part III C of Judge Tjoflat's opinion. More
    
    importantly, we are not policymakers. We do not have agendas. We ought to leave this survey to
    
    those who do.
    
                                                      III.
    
            The parts of Judge Tjoflat's opinion that neither I nor any other member of the Court except
    
    its author joins, Parts III B and C, are not necessary to the opinion's essential reasoning or to the
    
    
                                                       36
    holding of this case. Neither the language of Title IX nor its legislative history indicates that
    
    Congress intended to saddle school boards and officials with liability for student-student sexual
    
    harassment, and school boards had no notice that such liability would result from accepting Title IX
    
    funds. For those reasons, I do join the holding of the Court and Parts I, II, III A, and IV of Judge
    
    Tjoflat's opinion.
    
          BARKETT, Circuit Judge, dissenting, in which HATCHETT, Chief Judge, and KRAVITCH
    and HENDERSON, Senior Circuit Judges, join:
    
              In this case it is alleged that a fifth-grade student, Lashonda Davis, was sexually harassed
    
    for over six months at school by another student, culminating in a sexual battery for which her
    
    harasser pled guilty in state court. It is also alleged that school officials were completely aware of
    
    the escalating gravity of the situation and took no meaningful action to deter it. The majority holds
    
    that no matter how egregious—or even criminal—the harassing discriminatory conduct may be, and
    
    no matter how cognizant of it supervisors may become—a teacher could observe it directly and
    
    regularly—there would be no obligation to take any action to prevent it under the very law which
    
    was passed to eliminate sexual discrimination in our public schools. To reach this conclusion the
    
    majority ignores the plain meaning of Title IX as well as its spirit and purpose. I suggest that under
    
    appropriate statutory analysis as well as Supreme Court precedent, Davis has stated a cause of
    
    action.
    
              The first principle in statutory analysis requires that a statute be accorded the plain meaning
    of its text. It is well established that "[c]ourts must assume that Congress intended the ordinary
    
    meaning of the words it used, and absent a clearly expressed legislative intent to the contrary, that
    
    language is generally dispositive." Gonzalez v. McNary, 
    980 F.2d 1418
    , 1420 (11th Cir.1993)
    
    (internal citation omitted). The Supreme Court has emphasized that "only the most extraordinary
    
    showing of contrary intentions from [legislative history] would justify a limitation on the "plain
    
    meaning' of the statutory language." Garcia v. United States, 
    469 U.S. 70
    , 75, 
    105 S. Ct. 479
    , 482,
    
    
    83 L. Ed. 2d 472
     (1984). The text of Title IX provides in pertinent part:
    
    
    
                                                        37
            No 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(a). There is no ambiguity in this language. It is undisputed that the Monroe
    
    County School System is a recipient of federal financial assistance. It is also well established that
    
    hostile environment sexual harassment is a form of intentional discrimination which exposes one
    
    sex to disadvantageous terms or conditions to which members of the other sex are not exposed. See
    
    Meritor Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 64, 
    106 S. Ct. 2399
    , 2404, 
    91 L. Ed. 2d 49
     (1986);
    
    see also Franklin v. Gwinnett County Public Schools, 
    503 U.S. 60
    , 75, 
    112 S. Ct. 1028
    , 1037-38, 
    117 L. Ed. 2d 208
     (1992) (hostile environment for student created by teacher is a form of discrimination
    
    cognizable under Title IX). The absolute prohibition contained in the text is framed solely in terms
    
    of who is protected. The identity of the perpetrator is simply irrelevant under the language: "No
    
    person ... shall ... be excluded from participation ..., be denied the benefits of, or be subjected to
    
    discrimination...." Thus, under the statute's plain language, liability hinges upon whether the grant
    
    recipient maintained an educational environment that excluded any person from participating, denied
    
    them benefits, or subjected them to discrimination.
    
            Should one need to interpret the statute, it must initially be noted that Title IX was designed
    
    to protect individuals from sex discrimination by denying federal financial aid to those educational
    
    institutions that bear responsibility for sexually discriminatory practices. Cannon v. University of
    Chicago, 
    441 U.S. 677
    , 704 & n. 36, 
    99 S. Ct. 1946
    , 1961 & n. 36, 
    60 L. Ed. 2d 560
     (1979) (citing 117
    
    Cong. Rec. 39252 (1971)). "It is a strong and comprehensive measure which ... is needed if we are
    
    to provide women with solid legal protection as they seek education and training for later careers...."
    
    Id. at 704 n. 36, 99 S.Ct. at 1961 n. 36 (quoting Sen. Birch Bayh, 118 Cong. Rec. 5806-07 (1972)).
    
    Thus, in interpreting Title IX, "[t]here is no doubt that if we are to give [it] the scope that its origins
    
    dictate, we must accord it a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 
    456 U.S. 512
    , 521, 
    102 S. Ct. 1912
    , 1918, 
    72 L. Ed. 2d 299
     (1982) (internal quotation marks omitted).
    
    
    
    
                                                        38
           Moreover, the Office of Civil Rights of the Department of Education, the federal agency
    
    responsible for enforcement of Title IX, interprets the statutory language to impose liability on
    
    school officials for permitting an educational environment of severe, persistent, or pervasive peer
    
    sexual harassment when they know or should know about it, and fail to take immediate and
    
    appropriate corrective action to remedy it. See Sexual Harassment Guidance: Harassment of
    
    Students by School Employees, Other Students, or Third Parties, 62 Fed.Reg. 12,034, at 12,039-41
    
    (1997). The OCR's final policy guidance explains that:
    
           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.... 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.
    
    Id. at 12,039-40 (emphasis added).1
    
       1
        It is worth noting that the OCR's interpretation of Title IX as holding schools liable for
    permitting peer sexual harassment is consistent with its interpretation of Title VI of the Civil
    Rights Act of 1964, 42 U.S.C. § 2000d (1964), as holding schools liable for allowing peer racial
    harassment. This is significant because the Supreme Court has noted that "Title IX was
    patterned after Title VI." Cannon, 441 U.S. at 694, 99 S.Ct. at 1956. As the majority points out,
    the language of the two statutes is virtually identical, and the Supreme Court has held that they
    should be interpreted in the same way. See Majority Op. at 3362-63 (citing Cannon, 441 U.S. at
    696, 99 S.Ct. at 1957-58). The OCR issued An Investigative Guidance on Racial Incidents and
    Harassment Against Students at Educational Institutions in 1994 providing, "[T]he existence of a
    racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected
    by a recipient also constitutes different treatment on the basis of race in violation of Title VI."
    See 59 Fed.Reg. 11,448, at 11,448 (1994). Furthermore, the OCR has stated that the obligation
    of school districts with notice to remedy racially hostile environments applies "regardless of the
    identity of the person(s) committing the harassment—a teacher, student, the grounds crew, a
    cafeteria worker, neighborhood teenagers, a visiting baseball team, a guest speaker, parents or
    others." Id. at 11,450. As explained by the OCR:
    
                   Under this analysis, an alleged harasser need not be an agent or employee of the
                   recipient, because this theory of liability under Title VI is premised on a
                   recipient's general duty to provide a nondiscriminatory educational environment.
    
           Id. at 11,449.
    
                    Additionally, it is interesting to note that shortly after the enactment of Title VI,
           the former Fifth Circuit recognized that school officials must take steps within their
           power to prevent racial harassment among students. In United States v. Jefferson County
           Bd. of Educ., 
    380 F.2d 385
     (5th Cir.1967) (en banc), which is binding precedent in this
           circuit, see Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir.1981) (en banc),
           the court of appeals entered a model desegregation decree which complied with "the
    
                                                     39
           Notwithstanding the administrative interpretation of the statute, as well as its plain meaning,
    
    the majority concludes that Congress did not intend to create a cause of action under Title IX for
    
    student-on-student sexual harassment based largely on an analysis of legislative history. The
    
    majority emphasizes that "throughout this long legislative history, the drafters of Title IX never
    
    discussed student-student sexual harassment...." See Majority Op. at 3360. Assuming this to be
    
    true, the mere fact that student-on-student sexual harassment may not have been specifically
    
    mentioned in the Congressional debates does not mean that it was not encompassed within
    
    Congress's broad intent of preventing students from being "subjected to discrimination" in federally
    
    funded educational programs. The majority suggests that it is clear that Congress was not concerned
    
    with student-on-student sexual harassment because the legislative history focused primarily on the
    
    issues of discrimination in "admission[s]," "available services or studies," and "employment within
    
    an institution," none of which were pertinent to the claim raised in this case. See Majority Op. at
    
    3358-59, 3360. However, under this narrow view, even the cause of action under Title IX for
    
    teacher-on-student sexual harassment recognized by the Supreme Court in Franklin, 503 U.S. at 60,
    
    112 S.Ct. at 1028-29, would not be supported by the majority's view of legislative history. In
    
    Franklin the Court considered a high-school student's Title IX suit alleging that a teacher had
    
    sexually harassed and assaulted her and that school officials, who had knowledge of the misconduct,
    
    had failed to intervene. Id. at 63-64, 112 S.Ct. at 1031-32. Surely the majority would not suggest
    
    that the cause of action that the Supreme Court recognized in Franklin does not exist simply because
    
    it was not specifically mentioned in the legislative history. Moreover, the majority's interpretation
    
    
           letter and spirit of the Civil Rights Act of 1964", Jefferson County, 380 F.2d at 390. The
           decree provided in relevant part:
    
                   Within their authority school officials are responsible for the protection of
                   persons exercising rights under or otherwise affected by this decree. They shall,
                   without delay, take appropriate action with regard to any student or staff member
                   who interferes with the successful operation of the plan. Such interference shall
                   include harassment, intimidation, threats, hostile words or acts, and similar
                   behavior.
    
           Id. at 392.
    
                                                     40
    of the statute based on legislative history would suggest that by using the unqualified words
    
    "discrimination under any education program" Congress only intended to cover the narrow areas of
    
    admissions, services, and employment. This contravenes both common sense and the plain meaning
    
    of the words of the statute.
    
            Furthermore, the majority contends that Title IX may not be construed as authorizing a cause
    
    of action for a school board's failure to remedy student-on-student sexual harassment because such
    
    an interpretation would conflict with the notice of liability requirement of the Spending Clause,
    
    which is the constitutional provision under which Title IX was ostensibly enacted.2 See Majority
    
    Op. at 3362, 3364-65 (citing Pennhurst State School & Hospital v. Halderman, 
    451 U.S. 1
    , 17, 
    101 S. Ct. 1531
    , 1539-40, 
    67 L. Ed. 2d 694
     (1981)). However, it is clear that the school board would have
    
    sufficient notice of liability based on the plain meaning of the statute, which unequivocally imposes
    
    liability on grant recipients for maintaining an educational environment in which students are
    
    subjected to discrimination. Further, sufficient notice was provided to satisfy the Spending Clause
    
    prerequisite for a damages action under Title IX as set forth in Franklin, 503 U.S. at 74-75, 112
    
    S.Ct. at 1037-38. In Franklin the Court explained that the notice requirement for damages actions
    
    under the Spending Clause in Title IX cases is satisfied where the alleged violation was intentional.
    
    Id. The Court found that since sexual harassment constitutes intentional discrimination in violation
    
    of Title IX, the Spending Clause does not prohibit a cause of action for teacher-on-student sexual
    
    harassment under Title IX. Id. Similarly, in this case the alleged violation of Title IX was intentional
    
    because the school board knowingly permitted a student to be subjected to a hostile environment of
    
    sexual harassment. See, e.g., Doe v. Petaluma City Sch. Dist., 
    949 F. Supp. 1415
    , 1422, 1427
    
    (N.D.Cal.1996) (holding that hostile environment sexual harassment constitutes "intentional
    
    discrimination," and that schools are liable under Title IX when they know or should know about
    
       2
        In Franklin, the Supreme Court assumed, without deciding, that Title IX was enacted
    pursuant to the Spending Clause. Franklin, 503 U.S. at 75 & n. 8, 112 S.Ct. at 1037 & n. 8. It is
    also arguable that the provision was enacted pursuant to § 5 of the Fourteenth Amendment. For
    purposes of this discussion, I will assume, like the majority, that the authorizing provision was
    the Spending Clause.
    
                                                      41
    student-on-student sexual harassment and fail to take prompt remedial action); Bruneau v. South
    
    Kortright Central Sch. Dist., 
    935 F. Supp. 162
    , 172 (N.D.N.Y.1996) (recognizing that a school's
    
    failure to take corrective action in response to hostile environment created by peers despite actual
    
    notice of harassment subjects it to liability for intentional discrimination, and therefore to damages
    
    under Title IX); Burrow v. Postville Community Sch. Dist., 
    929 F. Supp. 1193
    , 1205 (N.D.Iowa
    
    1996) (holding that intentional discrimination may be inferred from "the totality of relevant
    
    evidence, including evidence of the school's failure to prevent or stop the sexual harassment despite
    
    actual knowledge of the sexually harassing behavior of students over whom the school exercised
    
    some degree of control"); Oona R.-S. v. Santa Rosa City Schs., 
    890 F. Supp. 1452
    , 1464, 1469
    
    (N.D.Cal.1995) (explaining that discriminatory intent can be found in "the toleration of harassing
    
    behavior of male students, or the failure to take adequate steps to deter or punish peer harassment");
    
    see also Canutillo Independent School Dist. v. Leija, 
    101 F.3d 393
    , 406 (5th Cir.1996), cert. denied,
    
    --- U.S. ----, 
    117 S. Ct. 2434
    , 
    138 L. Ed. 2d 195
     (1997) (noting that "when the Supreme Court referred
    
    to "intentional discrimination' in Franklin, it was referring to any form of discrimination other than
    
    disparate impact discrimination.").
    
            Finding that Title IX authorizes a cause of action for student-on-student sexual harassment,
    
    we should then follow the lead of other courts, including the Supreme Court, in turning to Title VII
    
    principles to delineate the scope of the school board's duty and identify the elements of a cause of
    
    action under Title IX. In relevant part, Title VII requires an employer to take steps to assure that the
    
    working environment of its employees is free from sexual harassment3 that is "sufficiently severe
    
    or pervasive to alter the conditions of the victim's employment and create an abusive working
    
    
    
       3
        Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and
    other unwelcome verbal or physical conduct of a sexual nature. 29 C.F.R. § 1604.11(a) (1991).
    Such harassment constitutes actionable sex discrimination in the workplace either as "quid pro
    quo" sexual harassment, which conditions employment benefits upon sexual favors, or as
    "hostile environment" sexual harassment, which creates an intimidating, hostile or offensive
    working environment that unreasonably interferes with an individual's work performance. See
    Meritor 477 U.S. at 62, 65, 106 S.Ct. at 2403, 2404-05.
    
                                                      42
    environment." Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (internal quotation marks and brackets
    
    omitted).
    
           It is appropriate to turn to Title VII because the Supreme Court has explicitly relied on Title
    
    VII principles in explaining that sexual harassment constitutes intentional "discrimination" under
    
    Title IX:
    
           Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to
           discriminate on the basis of sex, and "when a supervisor sexually harasses a subordinate
           because of the subordinate's sex, that supervisor "discriminate[s]' on the basis of sex."
           Meritor Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 64 [
    106 S. Ct. 2399
    , 2402, 
    91 L. Ed. 2d 49
    ]
           (1986). We believe the same rule should apply when a teacher sexually harasses and abuses
           a student. Congress surely did not intend for federal moneys to be expended to support the
           intentional actions it sought by statute to proscribe.
    
    Franklin, 503 U.S. at 74-75, 112 S.Ct. at 1037. Significantly, the Court relied on Meritor, a Title
    
    VII case, to resolve the issue.
    
           A well established line of cases preceded the Supreme Court's decision to use Title VII
    
    principles in resolving a Title IX case. Prior to Franklin, courts had held that such principles are
    
    applicable in Title IX suits brought by employees of educational institutions. See, e.g., Lipsett v.
    
    University of Puerto Rico, 
    864 F.2d 881
    , 897 (1st Cir.1988) (Title IX's legislative history "strongly
    
    suggests that Congress meant for similar substantive standards to apply under Title IX as had been
    
    developed under Title VII."); see also Preston v. Commonwealth of Virginia ex rel. New River
    
    Community College, 
    31 F.3d 203
    , 207 (4th Cir.1994); Mabry v. State Bd. of Comm. Coll. & Occup.
    Educ., 
    813 F.2d 311
    , 316 n. 6 (10th Cir.1987), cert. denied, 
    484 U.S. 849
    , 
    108 S. Ct. 148
    , 
    98 L. Ed. 2d 104
     (1987). Courts had also relied on Title VII when evaluating Title IX sexual harassment claims
    
    by students. See, e.g., Moire v. Temple Univ. Sch. of Medicine, 
    613 F. Supp. 1360
    , 1366 & n. 2
    
    (E.D.Pa.1985), aff'd, 
    800 F.2d 1136
     (3d Cir.1986) (hostile environment sexual harassment);
    
    Alexander v. Yale Univ., 
    459 F. Supp. 1
    , 4 (D.Conn.1977), aff'd, 
    631 F.2d 178
     (2d Cir.1980) (quid
    
    pro quo sexual harassment).
    
           Since the Supreme Court's Franklin case, at least five circuit courts have found that Title VII
    
    standards are applicable to students' Title IX sexual harassment claims. See Oona, R.___S.___, by
    
    
                                                     43
    Kate S. v. McCaffrey, --- F.3d ---- (9th Cir.Aug. 13, 1997); Doe v. Claiborne County, 
    103 F.3d 495
    ,
    
    514 (6th Cir.1996); Kinman v. Omaha Pub. Sch. Dist., 
    94 F.3d 463
    , 469 (8th Cir.1996); see also
    
    Seamons v. Snow, 
    84 F.3d 1226
    , 1232-33 & n. 7 (10th Cir.1996) (holding that although Title IX does
    
    protect against hostile environment sexual harassment in schools, plaintiff failed to state a valid
    
    claim because he did not allege that the harassment in question was based on sex); Murray v. New
    
    York University College of Dentistry, 
    57 F.3d 243
    , 249 (2d Cir.1995) ("The [Franklin ] Court's
    
    citation of Meritor ..., a Title VII case, in support of Franklin 's central holding indicates that, in a
    
    Title IX suit for gender discrimination based on sexual harassment of a student, an educational
    
    institution may be held liable under standards similar to those applied in cases under Title VII.").
    
    But cf. Rowinsky v. Bryan Indep. Sch. Dist., 
    80 F.3d 1006
    , 1016 (5th Cir.1996), cert. denied, ---
    
    U.S. ----, 
    117 S. Ct. 165
    , 
    136 L. Ed. 2d 108
     (1996) (holding that student-on-student sexual harassment
    
    cannot be the basis for a cause of action under Title IX unless the plaintiff demonstrates that the
    
    school responded to sexual harassment claims differently based on sex.).
    
            Additionally, the Ninth Circuit has recently relied on an analogy to Title VII in holding that
    
    the law is clearly established that school officials have a duty under Title IX to take reasonable steps
    
    to prevent student-on-student sexual harassment. See Oona, R.___S.___, pgs. *4-*6, --- F.3d at ---- -
    
    ----. See, e.g., Bruneau, 935 F.Supp. at 172 ("When an employer fails to act to remedy a hostile
    
    environment created by co-workers the employer discriminates against an individual in violation of
    Title VII. Similarly, [this] Court finds that in the Title IX context, when an educational institution
    
    fails to take steps to remedy peer-on-peer sexual harassment, it should be held liable to the harassed
    
    student for that discriminatory conduct."); Bosley v. Kearney R-1 Sch. Dist., 
    904 F. Supp. 1006
    ,
    
    1021 (W.D.Mo.1995) ("Following the [Franklin ] Court's logic, the same rule as when an employer
    
    is held liable for a sexually hostile work environment under Title VII must apply when a school
    
    district has knowledge of a sexually hostile school environment and takes no action."); see also
    
    Nicole M. v. Martinez Unified School Dist., 
    964 F. Supp. 1369
    , 1377-78 (N.D.Cal.1997); Collier v.
    
    William Penn Sch. Dist., 
    956 F. Supp. 1209
    , 1213-14 (E.D.Pa.1997); Franks v. Kentucky School for
    
    
                                                       44
    the Deaf, 
    956 F. Supp. 741
    , 746 (E.D.Ky.1996); Petaluma, 949 F.Supp. at 1427; Wright v. Mason
    
    City Community Sch. Dist., 
    940 F. Supp. 1412
    , 1419-20 (N.D.Iowa 1996); Burrow, 929 F.Supp. at
    
    1205; Oona R.___S.___, 890 F.Supp. at 1467-69 & n. 13; Patricia H. v. Berkeley Unified Sch.
    
    Dist., 
    830 F. Supp. 1288
    , 1293 (N.D.Cal.1993). But see Garza v. Galena Park Indep.Sch. Dist., 
    914 F. Supp. 1437
    , 1438 (S.D.Tex.1994). Thus, the applicable case law firmly supports applying Title
    
    VII principles to delineate the scope of a school board's liability under Title IX for failure to remedy
    
    student-on-student sexual harassment.
    
            Notwithstanding this abundant support for applying Title VII principles, the majority
    
    contends that Title VII principles may not be applied in this case because "the exposition of liability
    
    under Title VII depends upon agency principles." See Majority Op. at 3363 n. 13. The majority
    
    asserts that "[a]gency principles are useless in discussing liability for student-student harassment
    
    under Title IX, because students are not agents of the school board."4 Id. This argument overlooks
    
    the Supreme Court's caveat in Meritor that "common law principles [of agency] may not be
    
    transferable in all their particulars to Title VII." Meritor, 477 U.S. at 72, 106 S.Ct. at 2408 (emphasis
    
    added).5 Under Meritor 's flexible approach, courts have held that an employer may be held liable
    
       4
        The majority also argues that Title VII case law is inapplicable to Title IX because Title IX,
    unlike Title VII, was enacted under the Spending Clause. However, the Supreme Court has
    relied on Title VII in analyzing claims under Title VI, which also was enacted under the
    spending power. In Guardians Ass'n v. Civil Service Comm'n, 
    463 U.S. 582
    , 
    103 S. Ct. 3221
    , 
    77 L. Ed. 2d 866
     (1983), for example, the Court found that Title VI's prohibition of discrimination
    was "subject to the construction given the antidiscrimination proscription of Title VII in Griggs
    v. Duke Power Co. ...." Guardians, 463 U.S. at 592, 103 S.Ct. at 3227. The Court also adopted
    Title VII's "business necessity" defense to analyze disparate impact claims in a Title VI case
    involving student placement. See Board of Educ. v. Harris, 
    444 U.S. 130
    , 151, 
    100 S. Ct. 363
    ,
    375, 
    62 L. Ed. 2d 275
     (1979). Likewise, this court has utilized Title VII to analyze a disparate
    impact claim under Title VI, stating that "[t]he elements of a disparate impact claim may be
    gleaned by reference to cases decided under Title VII." Georgia State Conf. of Branches of
    NAACP v. Georgia, 
    775 F.2d 1403
    , 1417 (11th Cir.1985). Thus, the fact that Title VII is not a
    Spending Clause statute has not been a bar to importing its standards into Title VI, which formed
    the template for Title IX, and therefore should not be a bar to importing its standards into Title
    IX.
       5
        As Judge Tjoflat has explained, "Title VII, as interpreted in Meritor, requires employers to
    take steps to ensure that sexual harassment does not permeate the workplace. To the extent that
    the application of common law agency principles frustrates Title VII's goal of eliminating such
    harassment—by effectively relieving the employer of the responsibility of pursuing that
    
                                                       45
    under Title VII for failing to take action to remedy a hostile environment created by non-employees,
    
    who are certainly not agents of the employer. See, e.g., Powell v. Las Vegas Hilton Corp., 
    841 F. Supp. 1024
    , 1028 (D.Nev.1992) (denying motion to dismiss blackjack dealer's claim that her
    
    employer violated Title VII by failing to protect her from sexual harassment by gamblers at her
    
    table, because "an employer could be liable for the sexual harassment of employees by
    
    non-employees, including its customers"); Magnuson v. Peak Technical Services, Inc., 
    808 F. Supp. 500
    , 512-13 (E.D.Va.1992) (holding that employers of alleged victim can be held liable for failing
    
    to take corrective action to remedy hostile environment created by non-employee); see also Henson
    
    v. City of Dundee, 
    682 F.2d 897
    , 910 (11th Cir.1982) ("The environment in which an employee
    
    works can be rendered offensive in an equal degree by the acts of supervisors, coworkers, or even
    
    strangers to the workplace.") (emphasis added) (internal citations omitted).6 The employers were
    
    held liable in these cases by virtue of their own failure to comply with the duty of eliminating
    
    discrimination under Title VII—not under any theory of vicarious liability for the acts of a third
    
    party.
    
             Application of Title VII principles also recognizes that a student should have the same
    
    protection in school that an employee has in the workplace.7 See Franklin, 503 U.S. at 74-75, 112
    
    
    goal—those principles must yield." Faragher v. City of Boca Raton, 
    111 F.3d 1530
    , 1544, 1546
    n. 2 (11th Cir.1997) (Tjoflat, J., concurring in part, dissenting in part).
       6
        Moreover, guidelines promulgated under Title VII recognize that an employer may be held
    liable for failing to take corrective action to remedy a hostile environment created by a third
    party. See 29 C.F.R. § 1604.11(e) ("An employer may also be responsible for the acts of
    non-employees in the workplace ..., where the employer (or its agents or supervisory employees)
    knows or should have known of the conduct and fails to take immediate and appropriate
    corrective action.").
       7
        Indeed, where there are distinctions between the school environment and the workplace, they
    "serve only to emphasize the need for zealous protection against sex discrimination in the
    schools." Patricia H., 830 F.Supp. at 1292-93. The ability to control and influence behavior
    exists to an even greater extent in the classroom than in the workplace, as students look to their
    teachers for guidance as well as for protection. The damage caused by sexual harassment also is
    arguably greater in the classroom than in the workplace, because the harassment has a greater
    and longer lasting impact on its young victims, and institutionalizes sexual harassment as
    accepted behavior. Moreover, "[a] nondiscriminatory environment is essential to maximum
    intellectual growth and is therefore an integral part of the educational benefits that a student
    
                                                    46
    S.Ct. at 1037-38. Just as a working woman should not be required to "run a gauntlet of sexual abuse
    
    in return for the privilege of being allowed to work and make a living," Meritor, 477 U.S. at 67, 106
    
    S.Ct. at 2405 (internal citation omitted), a female student should not be required to run a gauntlet
    
    of sexual abuse in return for the privilege of being allowed to obtain an education. In the
    
    employment context, women historically have not had the power to simply walk away from an
    
    environment that is made to be demeaning, embarrassing, and humiliating for them because of their
    
    gender. Similarly, it is virtually impossible for female students to leave their assigned schools to
    
    escape an environment where they are harassed and intimidated on the basis of their gender. Just
    
    as in the employment setting where employees are dependent on their employers to ensure
    
    workplace equality, so too students are dependent on teachers and school officials to control the
    
    educational environment. Additionally, sexual harassment—regardless of its source—subordinates
    
    girls in the classroom just as much as in the workforce. Although a hostile environment can be
    
    created by someone who supervises or otherwise has power over the victim, a hostile environment
    
    can also be created by co-workers or fellow students who have no direct power relationship
    
    whatsoever with the victim.8 And like Title VII, Title IX was enacted to remedy that discrimination
    
    and ensure sexual equality in public education.
    
           Having determined that Title VII principles should guide our analysis of the scope of the
    
    school board's liability under Title IX, I conclude that Davis's allegations sufficiently plead a cause
    
    
    receives. A sexually abusive environment inhibits, if not prevents, the harassed student from
    developing her full intellectual potential and receiving the most from the academic program." Id.
    at 1293 (citation omitted).
       8
        Numerous circuit courts, including this one, have held that an employer's failure to take
    prompt remedial action after notice of severe and pervasive sexual harassment by a co-worker is
    actionable. See, e.g., Henson v. City of Dundee, 
    682 F.2d 897
    , 905 (11th Cir.1982); see also
    DeAngelis v. El Paso Municipal Police Officers Assoc., 
    51 F.3d 591
    , 593 (5th Cir.1995);
    Nichols v. Frank, 
    42 F.3d 503
    , 508 (9th Cir.1994); Carr v. Allison Gas Turbine Div. Gen.
    Motors Corp., 
    32 F.3d 1007
    , 1009 (7th Cir.1994); Karibian v. Columbia University, 
    14 F.3d 773
    , 779 (2d Cir.), cert. denied, 
    512 U.S. 1213
    , 
    114 S. Ct. 2693
    , 
    129 L. Ed. 2d 824
     (1994);
    Kauffman v. Allied Signal, Inc., Autolite Div., 
    970 F.2d 178
    , 182 (6th Cir.), cert. denied, 
    506 U.S. 1041
    , 
    113 S. Ct. 831
    , 
    121 L. Ed. 2d 701
     (1992); Baker v. Weyerhaeuser Co., 
    903 F.2d 1342
    ,
    1345-46 (10th Cir.1990); Hall v. Gus Construction Co., 
    842 F.2d 1010
    , 1015-16 (8th Cir.1988).
    
                                                      47
    of action. The elements a plaintiff must prove to succeed in this type of sexual harassment case are:
    
    (1) that she is a member of a protected group; (2) that she was subject to unwelcome sexual
    
    harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently
    
    severe or pervasive so as to alter the conditions of her education and create an abusive educational
    
    environment; and (5) that some basis for institutional liability has been established. See Meritor,
    
    477 U.S. at 66-73, 106 S.Ct. at 2405-09; see also Harris v. Forklift Sys. Inc., 
    510 U.S. 17
    , 20-24,
    
    
    114 S. Ct. 367
    , 370-71, 
    126 L. Ed. 2d 295
     (1993); Lipsett, 864 F.2d at 898-902; Henson, 682 F.2d
    
    at 903-05.
    
           Assumed as true, the facts alleged in the complaint, together with all reasonable inferences
    
    therefrom, satisfy these elements. There is no question that the allegations satisfy the first three
    
    requirements. First, as a female, LaShonda is a member of a protected group. Second, she was
    
    subject to unwelcome sexual harassment in the form of "verbal and physical conduct of a sexual
    
    nature." 29 C.F.R. § 1604.11(a). Third, the harassment LaShonda faced clearly was on the basis
    
    of her sex.
    
           As to the fourth requirement, I recognize that a hostile environment in an educational setting
    
    is not created by simple childish behavior or by an offensive utterance, comment, or vulgarity.
    
    Rather, Title IX is violated "[w]hen the [educational environment] is permeated with "discriminatory
    
    intimidation, ridicule, and insult' that is "sufficiently severe or pervasive to alter the conditions of
    the victim's [environment] and create an abusive environment,' " Harris, 114 S.Ct. at 370, 510 U.S.
    
    at 21 (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. at 2405-06) (internal citations omitted). In
    
    determining whether a plaintiff has established that an environment is hostile or abusive, a court
    
    must be particularly concerned with (1) the frequency of the abusive conduct; (2) the conduct's
    
    severity; (3) whether it is physically threatening or humiliating rather than merely offensive; and
    
    (4) whether it unreasonably interferes with the plaintiff's performance. Harris, 444 U.S. at 142-44,
    
    100 S.Ct. at 371. The Court has explained that these factors must be viewed both objectively and
    
    subjectively. If the conduct is not so severe or pervasive that a reasonable person would find it
    
    
                                                      48
    hostile or abusive, it is beyond Title IX's purview. Similarly, if the plaintiff does not subjectively
    
    perceive the environment to be abusive, then the conduct has not actually altered the conditions of
    
    her learning environment, and there is no Title IX violation. Id., 444 U.S. at 141-42, 100 S.Ct. at
    
    370.
    
            In this case, the five months of alleged harassment was sufficiently severe and pervasive to
    
    have altered the conditions of LaShonda's learning environment from both an objective and a
    
    subjective standpoint: (1) G.F. engaged in abusive conduct toward LaShonda on at least eight
    
    occasions; (2) the conduct was sufficiently severe to result in criminal charges against G.F. to which
    
    he pled guilty in state court; (3) the conduct, such as the groping and requests for sex, was
    
    physically threatening and humiliating rather than merely offensive;            and (4) the conduct
    
    unreasonably interfered with LaShonda's academic performance, resulting in the substantial
    
    deterioration of her grades and emotional health. The facts alleged go far beyond simple horseplay,
    
    childish vulgarities, or adolescent flirting.
    
            Finally, I believe that the fifth and final element—whether any basis for the Board's liability
    
    has been shown, has likewise been sufficiently alleged. Under Title VII, an employer may be held
    
    liable for a hostile environment of sexual harassment created by a co-worker if "the employer knew
    
    or should have known of the harassment in question and failed to take prompt remedial action."
    
    Faragher, 111 F.3d at 1538; Henson, 682 F.2d at 905; see also Meritor, 477 U.S. at 72-73, 106
    S.Ct. at 2408-09. By analogy, in this instance the school board may be held liable if it knew or
    
    should have known of the harassment and failed to take timely remedial action. In Title VII cases,
    
    an employee can demonstrate that the employer knew of the harassment "by showing that she
    
    complained to higher management of the harassment or by showing the pervasiveness of the
    
    harassment, which gives rise to the inference of knowledge or constructive knowledge." Henson,
    
    682 F.2d at 905. (citation omitted). In this case, Davis has alleged that she told the principal—a
    
    higher level manager—of the harassment on several occasions. She also alleged that at least three
    
    separate teachers, in addition to the principal, had actual and repetitive knowledge from LaShonda,
    
    
                                                      49
    her mother and other students. Finally, Davis alleged that despite this knowledge, the school
    
    officials failed to take prompt remedial action to end the harassment.9 These allegations regarding
    
    institutional liability, as well as the other allegations, are sufficient to establish a prima facie claim
    
    under Title IX for sexual discrimination due to the Board's failure to take action to remedy a
    
    sexually hostile environment.
    
            For all the foregoing reasons, I would reverse the district court's dismissal of Davis's Title
    
    IX claim against the Board.
    
    
    
    
       9
        The complaint also alleged that during the time of the harassment, the Board had no policy
    prohibiting the sexual harassment of students in its schools, and had not provided any policies or
    training to its employees on how to respond to student-on-student sexual harassment.
    
                                                       50