     Case: 15-50558        Document: 00514035949     Page: 1   Date Filed: 06/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 15-50558                              FILED
                                                                            June 15, 2017
                                                                           Lyle W. Cayce
ADRIAN SALAZAR,                                                                 Clerk

                Plaintiff–Appellee,

v.

SOUTH SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,

                Defendant–Appellant.




                     Appeal from the United States District Court
                          for the Western District of Texas


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Adrian Salazar sued the South San Antonio Independent School District
for damages under Title IX of the Education Amendments Act of 1972 1 because
Michael Alcoser, while a vice principal and subsequently a principal of
elementary schools in the District, repeatedly molested Salazar, a student.
Though all of the material facts are undisputed and largely stipulated, the case
was tried before a jury, which found in favor of Salazar. The district court
entered a judgment awarding him $4,500,000. We conclude that the judicially
implied private right of action under Title IX does not impose liability on a



      1   20 U.S.C. § 1681 et seq.
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                                 No. 15-50558
school district when the only employee or representative of the district with
actual knowledge of the molestation was the perpetrator himself, even if the
perpetrator had authority to institute corrective measures on behalf of the
district to end discrimination by other individuals or in the school’s programs.
We accordingly reverse the district court’s judgment.
                                       I
      Adrian Salazar was a student at Price Elementary in the South San
Antonio Independent School District (the District). Michael Alcoser was then
a vice principal at the school and frequently removed Salazar and his brother
from lunch or physical education classes and took them to his office. At first,
Alcoser gave Salazar and his brother gifts and played games with them.
During Salazar’s third-grade year, Alcoser would buy Salazar’s lunch, which
they shared in Alcoser’s office behind closed doors, and Alcoser eventually
molested Salazar. The abuse continued through Salazar’s fifth-grade year and
the following summer at a computer camp held at another elementary school
within the District. During Salazar’s sixth-grade year, he attended a middle
school. Alcoser had been promoted and served as the principal of Carrillo
Elementary in the District. However, Alcoser persuaded Salazar’s parents to
drive him to Carrillo Elementary, approximately twice a week, so that Alcoser
could “tutor” Salazar. Salazar’s family discovered the abuse while he was in
the seventh grade.
      Uncontroverted testimony at trial established that as a vice-principal,
and later a principal, of elementary schools within the District, Alcoser had
corrective authority to address gender discrimination and sexual harassment
during the time that he molested Salazar, though there is no evidence that the
District designated Alcoser an “appropriate person” for purposes of reporting
or correcting his own misconduct. The parties stipulated before trial that
Alcoser, the perpetrator, was the only District employee or representative who
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                                 No. 15-50558
had actual knowledge of the abuse at the time it occurred and that the abuse
violated the District’s policies. The District received federal funding during
the period in question. Salazar’s parents reported Alcoser’s sexual abuse of
their son to the San Antonio police, the District fully cooperated in the ensuing
investigation, and the District terminated Alcoser’s employment.          Alcoser
ultimately pleaded guilty to aggravated sexual assault and was sentenced to
eighteen years in prison.
      Salazar sued the District and Alcoser for damages. After the district
court dismissed a number of the causes of action, Salazar filed an amended
complaint that included only a claim for monetary damages under Title IX
against the District. The District moved for summary judgment, contending
that Alcoser’s knowledge of his own wrongdoing could not be imputed to the
District, but that motion was denied, and the case proceeded to trial.
      The jury heard testimony from Salazar, his mother, his brother, and his
therapist. The District presented testimony from two employees: the District’s
Title IX coordinator, and the secretary of Price Elementary’s principal at the
time of the abuse. Each party moved for judgment as a matter of law at the
close of the other’s evidence; both motions were denied.
      The jury found that “an official of the school district who was assigned
the responsibility of preventing sexual harassment and granted authority to
remedy sexual harassment had actual knowledge of the sexual harassment of
Adrian Salazar.” It further found that such an official “reacted with deliberate
indifference to the sexual harassment” of Salazar. Salazar acknowledges that
there is no evidence that any official other than Alcoser had actual knowledge
of the sexual harassment or reacted with deliberate indifference. The jury
found that Salazar suffered damages in the amount of $4,500,000.
      After the jury returned its verdict, the District renewed its motion for
judgment as a matter of law, contending that the implied private right of action
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                                     No. 15-50558
for damages under Title IX does not extend to cases in which only the
wrongdoer had actual knowledge of the wrongdoing.                      The district court
concluded that Title IX liability is established when there is “(1) actual notice
of sexual harassment, (2) [to] an official empowered to take corrective action,
(3) who reacts with deliberate indifference.” The district court concluded that
Alcoser met all three criteria. The court distinguished the decisions cited by
the District as involving “rank-and-file teacher[s] [and] instructor[s],” and
reasoned that in those cases, the wrongdoer did not have “the authority to take
corrective action to end sexual harassment,” while in the present case, Alcoser
did. The district court accordingly denied the District’s motion for judgment
as a matter of law, as well as its motions in the alternative for a new trial and
for remittitur, and entered a judgment awarding Salazar $4,500,000. The
District appealed.
                                              II
      With exceptions not relevant here, Title IX provides, in 20 U.S.C.
§ 1681(a), 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.” 2     Title   IX       includes   express    authorization   of
administrative processes that permit federal agencies and departments to
terminate or refuse to provide financial assistance or funding to entities that
fail to comply with § 1681. 3 The reach of Title IX has, however, been extended
by the Supreme Court by implication.
      As recounted in the Supreme Court’s opinion in Gebser v. Lago Vista
Independent School District, the Court has, in a series of decisions, recognized



      2   20 U.S.C. § 1681(a).
      3   20 U.S.C. § 1682.
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                                      No. 15-50558
implied causes of action under Title IX. 4 In Cannon v. University of Chicago, 5
the Supreme Court held “that Title IX is also enforceable through an implied
private right of action.” 6 In Franklin v. Gwinnett County Public Schools, 7 the
Court concluded “that monetary damages are available in the implied private
action” and that “a school district can be held liable in damages in cases
involving a teacher’s sexual harassment of a student.” 8 While Franklin “d[id]
not purport to define the contours of that liability,” the Court “face[d] that issue
squarely” in Gebser. 9 In Gebser, a teacher had engaged in a sexual relationship
with one of his high school students. 10 The Court held that “damages may not
be recovered in those circumstances unless an official of the school district who
at a minimum has authority to institute corrective measures on the district’s
behalf has actual notice of, and is deliberately indifferent to, the teacher’s
conduct.” 11
      Both Salazar and the District rely on Gebser, arguing that it is outcome-
determinative in this case. Salazar contends that Alcoser was “an official of
the school district who at a minimum ha[d] authority to institute corrective
measures on the district’s behalf” and had “actual notice of” and was


      4 524 U.S. 274, 281 (1998).
      5 441 U.S. 677 (1979).
      6 Gebser, 524 U.S. at 281 (citing Cannon, 441 U.S. at 709).
      7 503 U.S. 60 (1992).
      8 Gebser, 524 U.S. at 281 (citing Franklin, 503 U.S. at 74-75).
      9 Id.
      10 Id. at 277.
      11 Id.; see also id. at 290:


      An “appropriate person” under § 1682 is, at a minimum, an official of the
      recipient entity with authority to take corrective action to end the
      discrimination. Consequently, in cases like this one that do not involve official
      policy of the recipient entity, we hold that a damages remedy will not lie under
      Title IX unless an official who at a minimum has authority to address the
      alleged discrimination and to institute corrective measures on the recipient’s
      behalf has actual knowledge of discrimination in the recipient’s programs and
      fails adequately to respond.

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                                       No. 15-50558
“deliberately indifferent to” his own abusive conduct. 12 Therefore, Salazar
insists, the District is liable because Alcoser’s conduct was the District’s
conduct by virtue of his authority to redress discrimination on the basis of sex.
The District has put forth a number of arguments in response. Among them
is its reliance upon the statement in Gebser that “[w]here a school district’s
liability rests on actual notice principles, however, the knowledge of the
wrongdoer himself is not pertinent to the analysis.” 13 We conclude that this
statement was part of the Supreme Court’s holding in Gebser, not dicta. 14
       The statement was made in response to footnote 8 in JUSTICE STEVENS’
dissenting opinion. 15 JUSTICE STEVENS disagreed with the parameters of the
private cause of action and remedy a majority of the Court recognized in Gebser
because JUSTICE STEVENS would have formulated the implied right of action
based on “settled principles of agency law.” 16             But in footnote 8, JUSTICE
STEVENS additionally asserted that if the Court’s majority opinion were to
apply its own formulation of the private cause of action to the facts correctly,
the court of appeals’ judgment in favor of the recipient should be reversed
because the teacher who abused his student had the authority to take
corrective measures when he had actual knowledge of harassment. 17 In other


       12  See id. at 277.
       13  Id. at 291.
        14 See United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (“A statement is not

dictum if it is necessary to the result or constitutes an explication of the governing rules of
law.”) (quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)).
        15 Gebser, 524 U.S. at 291 (“Justice STEVENS points out in his dissenting opinion that

Waldrop [the teacher who sexually abused a student] of course had knowledge of his own
actions.”).
        16 Id. at 298-99 (STEVENS, J., dissenting).
        17 Id. at 298 n.8 (STEVENS, J., dissenting):


             The Court’s holding is also questionable as a factual matter. Waldrop
       himself surely had ample authority to maintain order in the classes that he
       conducted. Indeed, that is a routine part of every teacher’s responsibilities. If
       Gebser had been the victim of sexually harassing conduct by other students
       during those classes, surely the teacher would have had ample authority to
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words, JUSTICE STEVENS advocated that the perpetrator of the sexual abuse
can be deemed an “appropriate person” under Title IX and for purposes of the
private cause of action that a majority of the Court held was implied if the
perpetrator had authority to correct discrimination or harassment. Writing for
a majority of the Court, JUSTICE O’CONNOR succinctly rejected JUSTICE
STEVENS’ understanding of the contours of the private right of action the Court
had crafted, saying: “Where a school district’s liability rests on actual notice
principles, however, the knowledge of the wrongdoer himself is not pertinent
to the analysis.” 18 Applying that principle to the present facts, the District is
not liable for damages based on Title IX since Alcoser’s knowledge of his own
wrongdoing is not pertinent.
       Nevertheless, because the claim in Gebser did not allege the precise
factual pattern present in this appeal, we will consider the text of Title IX,
other of the Supreme Court’s writings regarding implied rights of action and
remedies, and the import of the principles animating Gebser’s formulation of
when a recipient of federal funds may be liable under Title IX for sexual abuse
of a student by a teacher.
                                             III
                                              A
       Salazar acknowledges that liability under Title IX arises not from the
discrimination or harassment itself but from “an official decision by the
recipient not to remedy the violation.” 19 Salazar maintains that “[w]hether a


       take corrective measures. The fact that he did not prevent his own harassment
       of Gebser is the consequence of his lack of will, not his lack of authority.
       18 Id. at 291.
       19 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)
(emphasis added) (quoting Gebser, 524 U.S. at 290); see also id. at 643 (emphasizing that
“Gebser sought to eliminate any ‘risk that the recipient would be liable in damages not for its
own official decision but instead for its employees’ independent actions’” (quoting Gebser, 524
U.S. at 290-91)).
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Title IX compliance officer acts with deliberate disregard for someone else’s
harassment or abuse of a student, or performs these acts himself, a school
district is directly liable under Title IX.” Salazar contends that “whether
Alcoser committed the abuse himself or deliberately disregarded abuse
committed by a teacher, coach or janitor, the simple fact remains that no
person at the District above Alcoser would have known about the abuse.”
“Either way,” Salazar correctly observes, “members of the District’s board or
superintendent’s office would not know of the abuse, yet the latter clearly
would support the District’s direct liability under Gebser.”
      The obvious distinction between the circumstances that Salazar posits is
that a perpetrator of sexual abuse who also “has authority to institute
corrective measures on the district’s behalf,” within the meaning of Gebser, 20
is highly unlikely either to take “corrective measures on the district’s behalf”
or to report his own criminal behavior to another school district official who is
authorized to take corrective measures. In contrast, if a school district official
with authority to remedy discrimination proscribed by Title IX was not a
perpetrator and became aware that a district employee had sexually abused a
student, it could reasonably be expected that the official with remedial
authority would take action and would not exhibit deliberate indifference to
the victimization of a student.
      But more importantly, implying a right of action under Title IX that
would permit recovery of damages from a funding recipient when only the
person who committed sexual abuse had actual knowledge of his intentional
misconduct would be contrary to the statutory intent expressed in 20 U.S.C.
§ 1682.     There is a remedial scheme expressly set forth in § 1682, which
provides that federal funding or financial assistance cannot be terminated or


      20   Gebser, 524 U.S. at 277.
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withheld unless “the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the requirement
and has determined that compliance cannot be secured by voluntary means.” 21
It is unreasonable to construe § 1682 to mean that an employee of a school
district who committed sexual abuse in violation of the prohibitions of Title IX
would be an “appropriate person or persons” concerning that sexual abuse.
When an individual’s intentional conduct constitutes the discrimination, the
directive to “advise[]” an appropriate person “of the failure to comply” connotes
that the “appropriate person” is unaware of the misconduct. 22 Moreover, when
an individual’s intentional conduct that is contrary to a district’s policies is at
issue, it cannot be said that Congress intended the “determin[ation] that [the
recipient’s] compliance cannot be secured by voluntary means” to hinge on the
offending individual’s response if he was the only employee or representative
of the district who was “advised” of the “failure to comply.” 23
                                             B
       Though the cause of action recognized in Gebser is a judicially implied
one, 24 “[l]ike substantive federal law itself, private rights of action to enforce
federal law must be created by Congress.” 25 The “remedies available are those
‘that Congress enacted into law.’” 26 “Statutory intent . . . is determinative” of
whether there was congressional “intent to create not just a private right but
also a private remedy.” 27 “Without [statutory intent], a cause of action does
not exist and courts may not create one, no matter how desirable that might



       21 20 U.S.C. § 1682.
       22 See id.
       23 Id.
       24 Gebser, 524 U.S. at 284 (“[T]he private right of action under Title IX is judicially

implied . . . .”).
       25 Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
       26 Id. (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)).
       27 Id.

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be as a policy matter, or how compatible with the statute.” 28 The Supreme
Court has admonished that “[r]aising up causes of action where a statute has
not created them may be a proper function for common-law courts, but not for
federal tribunals.” 29 We discern no congressional intent in Title IX to provide
a private cause of action for damages when the only employee or representative
of a funding recipient who had knowledge of the discrimination was the
offender.
       The Supreme Court’s extensive elucidation in Gebser of how it derived
the contours of Title IX’s implied private cause of action for damages supports
the conclusion that one in Alcoser’s shoes should not be considered to have
acted in his capacity as a school district official with authority to remedy
discrimination when he failed to remedy or report his own misconduct. That
is because, at its core, the implied Title IX remedy that the Supreme Court
recognized depends on meaningful notice to a funding recipient so that it will
have an opportunity to remedy the discrimination.
       In Gebser, the Supreme Court said that “[b]ecause the private right of
action under Title IX is judicially implied, we have a measure of latitude to


       28Id. at 286-87.
       29Id. at 287 (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.
350, 365 (1991) (SCALIA, J., concurring in part and concurring in judgment)); see also id.:
              Respondents would have us revert in this case to the understanding of
       private causes of action that held sway 40 years ago when Title VI was enacted.
       That understanding is captured by the Court’s statement in J.I. Case Co. v.
       Borak, 377 U.S. 426, 433 [ ] (1964), that “it is the duty of the courts to be alert
       to provide such remedies as are necessary to make effective the congressional
       purpose” expressed by a statute. We abandoned that understanding in Cort v.
       Ash, 422 U.S. 66, 78 [ ] (1975)—which itself interpreted a statute enacted under
       the ancien regime—and have not returned to it since. Not even when
       interpreting the same Securities Exchange Act of 1934 that was at issue in
       Borak have we applied Borak’s method for discerning and defining causes of
       action. Having sworn off the habit of venturing beyond Congress’s intent, we
       will not accept respondents’ invitation to have one last drink. (citations
       omitted).

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shape a sensible remedial scheme that best comports with the statute.” 30 But
the Court recognized that “[a] private remedy should not be implied if it would
frustrate the underlying purpose of the legislative scheme.” 31
       The Supreme Court declined to create an implied remedy that would
“permit a damages recovery against a school district for a teacher’s sexual
harassment of a student based on principles of respondeat superior or
constructive notice, i.e., without actual notice to a school district official.” 32 In
concluding that liability premised on such a basis would “‘frustrate the
purpose’ of Title IX,” the Court said, “it does not appear that Congress
contemplated unlimited recovery in damages against a funding recipient
where the recipient is unaware of discrimination in its programs.” 33 The Court
drew upon contract principles, observing that Title IX “condition[s] an offer of
federal funding on a promise by the recipient not to discriminate, in what
amounts essentially to a contract between the Government and the recipient
of funds.” 34 The Court reasoned that “[i]f a school district’s liability for a
teacher’s sexual harassment rests on principles of constructive notice or
respondeat superior, it will likewise be the case that the recipient of funds was
unaware of the discrimination.” 35 The Court continued, “[i]t is sensible to
assume that Congress did not envision a recipient’s liability in damages in that
situation,” and “[w]e think it unlikely that [the school board] further agreed to
suffer liability whenever its employees discriminate on the basis of sex.” 36 A




       30 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998).
       31 Id. at 285 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 703 (1979)).
       32 Id.
       33 Id.
       34 Id. at 286.
       35 Id. at 287.
       36 Id. at 287-88 (quoting Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 654

(5th Cir. 1997)).
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logical corollary is that it is unlikely that a school board would agree to liability
in circumstances like those in the present case.
                                             C
       When the perpetrator is the only school official with notice, and the acts
of the perpetrator unquestionably violate the school district’s policies, the
purposes of Title IX are not served by imposing liability upon the funding
recipient. The implied cause of action would be more akin to strict liability in
such a circumstance, or to respondeat superior, which the Supreme Court
expressly rejected as a basis for an implied right of action under Title IX. 37
       In Davis, the Supreme Court reaffirmed that in Gebser, it “rejected the
use of agency principles to impute liability to the district for the misconduct of
its teachers,” and “[l]ikewise . . . declined the invitation to impose liability
under what amounted to a negligence standard—holding the district liable for
its failure to react to teacher-student harassment of which it knew or should
have known.” 38 To hold a district liable when an individual authorized to take
corrective measures becomes a perpetrator of sexual abuse, and the district
has no knowledge of that abuse, would be to embrace a standard of culpability
less than negligence. The district would be liable even if it did not know or
should not have known when it gave the perpetrator authority to remedy
discrimination based on sex that he would become a sex offender.




       37 Id. at 287-88.
       38 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)
(citing Gebser, 524 U.S at 283, 290); see also Gebser, 524 U.S. at 282, 285 (reflecting that
“petitioners and the United States submit that a school district should at a minimum be liable
for damages based on a theory of constructive notice, i.e., where the district knew or ‘should
have known’ about harassment but failed to uncover and eliminate it” but declining to adopt
that standard of culpability).
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                                              D
       The conclusions that the Supreme Court drew from its examination of
the administrative enforcement provisions expressly set forth in Title IX
further indicate that an implied private action does not extend to cases like
this one. The Court recognized that “Title IX’s express means of enforcement—
by administrative agencies—operates on an assumption of actual notice to
officials of the funding recipient.” 39 The Court noted that “an agency may not
initiate enforcement proceedings until it ‘has advised the appropriate person
or persons of the failure to comply with the requirement and has determined
that compliance cannot be secured by voluntary means.’” 40 The Court also
observed that regulations implementing Title IX’s express administrative
enforcement scheme “requir[e] resolution of compliance issues ‘by informal
means whenever possible,’ and prohibit[] commencement of enforcement
proceedings until the agency has determined that voluntary compliance is
unobtainable and ‘the recipient . . . has been notified of its failure to comply
and of the action to be taken to effect compliance.’” 41 Importantly, the Court
reasoned that notifying “the appropriate person” and the opportunity for
voluntary compliance prevents education funding from being stripped when
the recipient would have been willing to take corrective measures. 42 The Court


       39 Gebser, 524 U.S. at 288.
       40 Id. (quoting 20 U.S.C. § 1682).
       41 Id. (quoting 34 C.F.R. §§ 100.7(d), 100.8(d) (1997) and citing 34 C.F.R. § 100.8(c)

(1997)).
       42 Id. at 289:


               Presumably, a central purpose of requiring notice of the violation “to
       the appropriate person” and an opportunity for voluntary compliance before
       administrative enforcement proceedings can commence is to avoid diverting
       education funding from beneficial uses where a recipient was unaware of
       discrimination in its programs and is willing to institute prompt corrective
       measures. The scope of private damages relief proposed by petitioners is at
       odds with that basic objective. When a teacher’s sexual harassment is imputed
       to a school district or when a school district is deemed to have “constructively”
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                                    No. 15-50558
concluded that “[i]t would be unsound . . . for a statute’s express system of
enforcement to require notice to the recipient and an opportunity to come into
voluntary compliance while a judicially implied system of enforcement permits
substantial liability without regard to the recipient’s knowledge or its
corrective actions upon receiving notice.” 43
      In looking to Title IX’s express enforcement scheme for guidance in
establishing parameters for an implied right of action, the Supreme Court also
recognized that “an award of damages in a particular case might well exceed a
recipient’s level of federal funding.” 44 The Court concluded that because Title
IX’s “express enforcement scheme hinges its most severe sanction on notice and
unsuccessful efforts to obtain compliance,” it could not “attribute to Congress
the intention to have implied an enforcement scheme that allows imposition of
greater liability without comparable conditions.” 45
      In choosing the standard by which to measure the recipient’s response to
actual notice of discrimination in a private action, the Court again took into
account the fact that Title IX’s “administrative enforcement scheme
presupposes that an official who is advised of a Title IX violation refuses to take
action to bring the recipient into compliance.” 46 The Court said, “[t]he premise,
in other words, is an official decision by the recipient not to remedy the
violation.” 47 The Court recognized that if it were to adopt “a lower standard,
there would be a risk that the recipient would be liable in damages not for its



      known of the teacher’s harassment, by assumption the district had no actual
      knowledge of the teacher’s conduct. Nor, of course, did the district have an
      opportunity to take action to end the harassment or to limit further
      harassment.
      43 Id.
      44 Id. at 290.
      45 Id. (emphasis added).
      46 Id. (emphasis added).
      47 Id. (emphasis added).

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                                    No. 15-50558
own official decision but instead for its employees’ independent actions.” 48 The
Court therefore required deliberate indifference to discrimination as a
component of the implied private action for damages under Title IX. 49
      The goals and purpose of Title IX’s express remedial scheme would not
be accomplished or effectuated by permitting damage awards in circumstances
like those in the present case, in which the person who committed sexual
molestation is the only district employee or representative who knew of the
abuse.     The fact that the perpetrator was authorized to respond to
discrimination or sexual harassment of students on behalf of the district does
not change the analysis. When only the perpetrator knows he has sexually
abused a student, it cannot be said that
           • the district’s “compliance [with ‘the nondiscrimination mandate’ in
              Title IX] cannot be secured by voluntary means,” 50
           • the district’s “voluntary compliance is unobtainable,” 51
           • the district “has been notified of its failure to comply and of the
              action to be taken to effect compliance,” 52
           • the district “refuses to take action to bring the recipient into
              compliance,” 53
           • the district refused to take action after “notice and unsuccessful
              efforts to obtain compliance,” 54 or




      48   Id. at 290-91 (emphasis added).
      49   Id. at 290 (“We think, moreover, that the response must amount to deliberate
indifference to discrimination.”).
        50 Id. at 288 (quoting 20 U.S.C. § 1682).
        51 Id.
        52 Id. (quoting 34 C.F.R. § 108(d) and citing § 108(c)).
        53 Id. at 290.
        54 Id.

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            • the district has made its “own official decision” 55 “not to remedy
                 the violation.” 56
       The failure of an employee who committed sexual harassment to notify
any other “appropriate person” of the transgressions, or in this case, the serious
crimes that were committed, should be considered the offending employee’s
“independent action[],” not the district’s “own official decision” 57 or “an official
decision by the recipient not to remedy the violation.” 58 To hold that an implied
private action under Title IX permits the recovery of damages when only the
person who discriminated or molested had knowledge of his actions would
“permit[] substantial liability without regard to the recipient’s . . . corrective
actions upon receiving notice,” 59 since a district cannot be expected to take
corrective actions while the offender conceals his wrongdoing. The “premise”
of both the express and implied remedies under Title IX is “an official decision
by the recipient not to remedy the violation.” 60         Acts or omissions of the
perpetrator cannot reasonably be deemed “an official decision by the
recipient.” 61
                                           E
       As discussed above, the Supreme Court held in Gebser that “[w]here a
school district’s liability rests on actual notice principles . . . the knowledge of
the wrongdoer himself is not pertinent to the analysis.” 62 Salazar argues that
his claim is not based on actual notice principles but, rather, is based on the
District’s own actions, through Alcoser, a person designated by the District as


       55 Id. at 291.
       56 Id. at 290.
       57 Id. at 290-91.
       58 Id. at 290.
       59 Id. at 289.
       60 Id. at 290.
       61 See id.
       62 Id. at 291.

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                                    No. 15-50558
an “appropriate person” to remedy discrimination or abuse. But for the reasons
considered above, when an “appropriate person” commits sexual abuse,
violating a district’s clear policies prohibiting and condemning sexual contact
with or abuse of a student, imposing liability on the district when it had no
knowledge of the abuse would be counter to the purposes of Title IX. Title IX’s
legislative scheme would be frustrated if a recipient of Title IX funding could
be held liable for damages for sexual abuse when there was virtually no
likelihood that that the recipient would receive meaningful notice of the sexual
abuse with the corresponding opportunity to end it.
                                         F
      The district court treated the analysis in Gebser as “elements” of an
implied right of action that apply irrespective of the fact pattern presented.
But the prerequisites for liability articulated in Gebser were not all-
encompassing. They were tailored to fit the fact pattern then before the Court.
The Court framed the question it was deciding as “when a school district may
be held liable in damages in an implied right of action under Title IX . . . for
the sexual harassment of a student by one of the district’s teachers.” 63 The
answer was “damages may not be recovered in those circumstances unless an
official of the school district who at a minimum has authority to institute
corrective measures on the district’s behalf has actual notice of, and is
deliberately indifferent to, the teacher’s misconduct.” 64 That answer is not a
declaration of the “elements” of a private cause of action that will be
mechanically applied in all circumstances involving sexual abuse of a student
without any refinement for a case such as the present one.




      63   Id. at 277.
      64   Id. (emphasis added).
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                                         No. 15-50558
       The words “at a minimum” 65 are also qualifiers. A district is liable as a
consequence of “an official[’s]” actual notice and deliberate indifference. The
Court left room for identifying attributes of such an official beyond the
“minimum” qualifiers set forth in Gebser when facts different from those in
Gebser arose and warranted additional parameters in order to insure that the
implied remedy under Title IX was aligned with the statute’s express
provisions.
                                                IV
        The only issues presented in this appeal pertain to questions of law.
There are no material factual disputes, as both parties acknowledge.
Judgment as a matter of law is proper when “a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party” on a dispositive
issue. 66 The legal conclusions underlying the denial of judgment as a matter
of law, of course, are subject to de novo review. 67 An implied cause of action
under Title IX does not impose liability upon a recipient of federal funds when
only the perpetrator had actual knowledge of his sexual harassment of a
student, even if the perpetrator was authorized by the recipient to institute
corrective measures on the district’s behalf in response to sexual harassment
by others. Accordingly, the District is not liable in damages to Salazar.




       65  See id. at 290 (“Consequently, in cases like this one that do not involve official policy
of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an
official who at a minimum has authority to address the alleged discrimination and to
institute corrective measures on the recipient’s behalf has actual knowledge of discrimination
in the recipient’s programs and fails adequately to respond.” (emphasis added)).
        66 FED. R. CIV. P. 50(a).
        67 See Tamez v. City of San Marcos, 118 F.3d 1085, 1091 (5th Cir. 1997) (“We review

de novo the magistrate judge’s legal conclusions, whether regarding federal or state law, in
entering judgment under Rule 50(b).”).
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                                   No. 15-50558
                               *        *         *
      The abuse that Salazar suffered is heart-wrenching, and Alcoser’s
conduct and breach of trust is despicable. But requiring a recipient of Title IX
funds to respond in damages when its employee sexually abuses a student and
the only employee or representative of the recipient who has actual knowledge
of the abuse is the offender does not comport with Title IX’s express provisions
or implied remedies. We therefore REVERSE the district court’s judgment and
RENDER judgment for the District.




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