                     United States Court of Appeals,

                              Eleventh Circuit.

                                No. 94-9121.

     Aurelia DAVIS, a/n/f of Lashonda D., Plaintiff-Appellant,

                                       v.

 MONROE COUNTY BOARD OF EDUCATION, Charles Dumas and Bill Querry,
Defendants-Appellees.

                               Feb. 14, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 94-CV-140-4MAC(WDO), Wilbur D. Owens,
Judge.

Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

     BARKETT, Circuit Judge:

     Aurelia Davis, as mother and next friend of LaShonda D.,

appeals the district court's order dismissing her claims under

Title IX and § 1983 against the Monroe County Board of Education

("Board"), Board Superintendent Charles Dumas and elementary school

Principal   Bill     Querry    (collectively    "defendants").             Davis'

complaint for injunctive relief and compensatory damages alleged

that LaShonda was sexually harassed on a continuous basis by a

male, fifth-grade classmate, that defendants knew of the harassment

yet failed to take any meaningful action to stop it and protect

her, and that LaShonda suffered harm as a result of their failure

to   act.    The     defendants'   failure     to    act,    Davis      asserted,

discriminated against LaShonda and denied her the benefits of a

public   education    in   violation    of   Title   IX     of   the    Education

Amendments of 1972, 20 U.S.C. §§ 1681-88 (1988).                       Davis also

claimed that defendants' omissions violated LaShonda's liberty
interest to be free from sexual harassment and from intrusions on

her personal security in violation of her substantive due process

rights under the United States Constitution.

     The district court dismissed the Title IX claim against the

Board, concluding that

     [t]he sexually harassing behavior of a fellow fifth grader is
     not part of a school program or activity. Plaintiff does not
     allege that the Board or an employee of the Board had any role
     in the harassment.      Thus, any harm to LaShonda was not
     proximately caused by a federally-funded educational provider.

Aurelia D. v. Monroe County Bd. of Educ., 862 F.Supp. 363, 367

(M.D.Ga.1994).   The court also dismissed the § 1983 due process

claims against the Board and the individual defendants.

     On appeal, Davis argues that the court erred by dismissing her

Title IX claim against the Board1 and by dismissing her § 1983 due

process claims against all defendants.    She also contends that she

made an equal protection claim on which the district court failed

to rule.   Because we find them without merit, we reject Davis'

arguments regarding the due process and equal protection claims

without further discussion.    See 11th Cir. Rule 36-1.     For the

reasons that follow, however, we conclude that Davis' allegations

that the Board knowingly permitted a hostile environment created by

another student's sexual harassment of LaShonda state a valid Title

IX claim against the Board and accordingly we reverse the dismissal

of her complaint as to that claim.

                          I. BACKGROUND

     Davis' factual allegations, presumed as true in our review of


     1
      Davis does not appeal the district court's dismissal of the
Title IX claims against the individual defendants.
a motion to dismiss,      Duke v. Cleland, 5 F.3d 1399, 1402 (11th

Cir.1993), can be summarized as follows. Over the six-month period

between December 1992 and May 1993, "G.F.," a fellow fifth-grader

at a Monroe County elementary school, sexually harassed and/or

abused LaShonda by attempting to fondle her, fondling her, and

directing    offensive   language   toward   her.      In    December,    for

instance, G.F. attempted to touch LaShonda's breasts and vaginal

area, telling her, "I want to get in bed with you," and "I want to

feel your boobs."   Two similar incidents occurred in January 1993.

In February, G.F. placed a doorstop in his pants and behaved in a

sexually    suggestive   manner   toward   LaShonda.        Other   incidents

occurred later in February and in March.         In April, G.F. rubbed

against LaShonda in the hallway in a sexually suggestive manner.

G.F.'s actions increased in severity until he finally was charged

with and pled guilty to sexual battery in May 1993.

     LaShonda reported G.F. to her teachers and her mother after

each of the incidents and, after all but one of the incidents,

Davis called the teacher and/or the principal to see what could be

done to protect her daughter.        The requests for protection went

unfulfilled.    Following one incident, for example, LaShonda and

other girls whom G.F. had sexually harassed asked their teacher for

permission to report G.F.'s harassment to the principal.                  The

teacher denied the request, telling the girls, "[i]f he [the

principal] wants you, he'll call you."         After LaShonda told her

mother of another incident of harassment, adding that she "didn't

know how much longer she could keep him off her," Davis spoke with

Principal Querry and asked what action would be taken to protect
LaShonda.    Querry responded, "I guess I'll have to threaten him

[G.F.] a little bit harder," and he later asked LaShonda "why she

was the only one complaining."          LaShonda and Davis also asked that

LaShonda, who had an assigned seat next to G.F., be allowed to move

to a different seat.        Even this request was refused and she was not

allowed to move her seat away from G.F. until after she had

complained for over three months.          School officials never removed

or disciplined G.F. in any manner for his sexual harassment of

LaShonda.

     Finally,      the   complaint    alleged    that   G.F.'s    uncurbed    and

unrestrained      conduct    severely   curtailed   LaShonda's      ability    to

benefit    from    her   elementary     school   education,      lessening    her

capacity to concentrate on her schoolwork and causing her grades,

previously all As and Bs, to suffer.             The harassment also had a

debilitating effect on her mental and emotional well-being, causing

her to write a suicide note in April 1993.

                            II. STANDARD OF REVIEW

      Reviewing the claim de novo, we will uphold the dismissal

only if it appears beyond a doubt that the allegations in the

complaint do not constitute a claim upon which relief may be

granted.     Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th

Cir.1994).    "The issue is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to

support the claims."        Taylor v. Ledbetter, 818 F.2d 791, 794 n. 4

(11th Cir.1987) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct.

1337, 103 L.Ed.2d 808 (1989) (quotation omitted).

                               III. DISCUSSION
     Title IX provides in pertinent part as follows:

     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) (1988).            It is undisputed that the Monroe

County   School    System   is     a    recipient       of     federal      financial

assistance.      Accordingly, the issue before us is whether the

Board's alleged failure to take action to stop G.F.'s sexual

harassment of LaShonda "excluded [her] from participation in, ...

denied   [her]    the   benefits       of,   or   ...        subjected      [her]   to

discrimination under" the Monroe County educational system on the

basis of her sex.

     Davis argues that the Board's failure to stop the sexual

harassment    discriminated      against     LaShonda        and   denied    her    the

benefits of her education on the basis of sex.                 In support of this

argument, Davis urges us to apply sexual harassment principles from

the more extensive caselaw of Title VII, which prohibits sex

discrimination in the workplace.2             In relevant part, Title VII

requires an employer to take steps to assure that the working

environment of its employees is free from sexual harassment 3 that

     2
      Title VII makes it unlawful "for an employer ... to
discriminate against any individual ... because of such
individual's ... sex." 42 U.S.C. § 2000e-2(a)(1) (1988).
     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 Sav. Bank, FSB v. Vinson, 477 U.S. 57,
is "sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment."

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399,

2405,    91    L.Ed.2d   49    (1986)    (quotation      omitted).      The    Board

contends, however, that Title VII principles are not applicable to

Title IX cases such as the present one.

        Enacted in 1972, 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)).                    To

accomplish this goal, employees and students of federally funded

educational institutions who are discriminated against on the basis

of sex have a private right of action under Title IX for injunctive

relief and compensatory damages.              Id. at 717, 99 S.Ct. at 1968;

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75-76, 112

S.Ct.    1028,    1037-38,     117    L.Ed.2d    208    (1992).      Moreover,    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)


62, 65, 106 S.Ct. 2399, 2403, 2404, 91 L.Ed.2d 49 (1986).
(quotation omitted).

       Although the Supreme Court recognized a private right of

action under Title IX in 1979, see Cannon, 441 U.S. at 717, 99

S.Ct. at 1968, until recently the denial of financial aid was the

only remedy available to a Title IX plaintiff.                 Accordingly, early

lawsuits brought under Title IX primarily challenged discriminatory

practices in athletic programs and admissions policies. See, e.g.,

id. at 680, 99 S.Ct. at 1949.           In 1992, however, the Supreme Court

unanimously allowed monetary damages to private plaintiffs for

intentional violations of Title IX, see Franklin, 503 U.S. at 76,

112 S.Ct. at 1038, increasing the number of Title IX suits brought

by     employees    and     students    alleging       that    their     educational

institutions subjected them to sexual discrimination.

       In reviewing sexual discrimination claims by teachers and

other employees of educational institutions under Title IX, courts

have    regularly    applied    Title       VII   principles.       In   Lipsett    v.

University    of    Puerto    Rico,     864    F.2d    881   (1st    Cir.1988),    for

example,    the    plaintiff     was    a     female   medical      student   in   the

residency program and also was an employee of the University.                      Id.

at 886. She alleged that University hospital supervisory personnel

had subjected her to an atmosphere of sexual harassment at the

hospital.     Id. at 886-92.          In determining that Title VII sexual

harassment principles applied to this "mixed employment-training"

context, the Second Circuit relied on Title IX's legislative

history, "which strongly suggests that Congress meant for similar

substantive standards to apply under Title IX as had been developed

under Title VII."         Id. at 897;    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 Community Colleges, 813 F.2d 311,

316 n. 6 (10th Cir.1987).

       Courts also have relied upon Title VII when evaluating Title

IX sexual harassment claims by students. In determining that Title

IX prohibits a teacher's quid pro quo sexual harassment of a

student, for example, one court observed that

       [it is] perfectly reasonable to maintain that academic
       achievement conditioned upon submission to sexual demands
       constitutes sex discrimination in education, just as questions
       of job retention or promotion tied to sexual demands from
       supervisors have become increasingly recognized as potential
       violations of Title VII's ban against sex discrimination in
       employment....

Alexander v. Yale Univ., 459 F.Supp. 1, 4 (D.Conn.1977), aff'd, 631

F.2d 178 (2d Cir.1980).         Similarly, in recognizing that Title IX

prohibits the existence of a hostile environment due to a teacher's

sexual    harassment   of   a   student,   another   court   observed   that

"[t]hough the sexual harassment "doctrine' has generally developed

in the context of Title VII, these [Title VII] guidelines seem

equally applicable to Title IX."           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).

       Nonetheless, in Franklin v. Gwinnett County Public Schools,

911 F.2d 617 (11th Cir.1990), rev'd, 503 U.S. 60, 112 S.Ct. 1028,

117 L.Ed.2d 208 (1992), this court declined to apply a Title VII

analysis to the question of whether compensatory damages were

available in a suit brought by a student under Title IX.            Id. at

622.     On appeal, however, the Supreme Court reversed, and relied

upon Title VII principles and authority in holding that Title IX
authorizes an award of compensatory damages.            Franklin v. Gwinnett

County Pub. Schs., 503 U.S. 60, 74-75, 112 S.Ct. 1028, 1037, 117

L.Ed.2d 208 (1992).       Franklin involved a high-school student's

allegations that a teacher had sexually harassed and assaulted her

and   that   school   officials,     who   had    actual   knowledge    of    the

misconduct, had failed to intervene.             Id. at 63-64, 112 S.Ct. at

1031.     In rejecting the argument that the specific language of

Title IX did not give educational institutions sufficient notice of

their liability for damages for such discrimination, the Supreme

Court stated:

      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, 2404, 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 75, 112 S.Ct. at 1037.                Importantly, the

Court relied on Title VII principles and cited Meritor, a Title VII

case, to resolve the issue.

      Subsequently,    several   courts     have    understood    Franklin     to

authorize the application of Title VII standards to a student's

Title IX sexual harassment claim against her school.              In Murray v.

New   York   University    College    of   Dentistry,      57   F.3d   243   (2d

Cir.1995), the Second Circuit looked to Title VII in addressing a

student's Title IX claim that she was subjected to a sexually

hostile educational environment created by a patient at the dental

school.      Id. at 248.      The district court had dismissed the

complaint     after   determining      that      the   facts    alleged      were
insufficient to show that the college knew that plaintiff was

subjected   to    a   hostile    environment      created   by    the   patient's

persistent sexual advances.            Id. at 247-48.       In considering the

appropriate standard for determining whether the college had notice

of the hostile environment, the Second Circuit observed:                     "[t]he

[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."

Murray, 57 F.3d at 249.         Upon application of Title VII standards,

the   Second     Circuit   determined      that    the   facts     alleged     were

insufficient to show that the college had notice of the hostile

environment.      Id. at 249-51.

      Similarly, the District Court for the Northern District of

California relied on Franklin in determining that a student may

state a Title IX claim for hostile environment sexual harassment

where the harassment is initiated by fellow students.                   In   Doe v.

Petaluma School District, 830 F.Supp. 1560 (N.D.Cal.1993), the

plaintiff alleged that she was harassed when she was a seventh- and

eighth-grade     student   in    the    defendant    school      district.      The

harassment allegedly began early in plaintiff's seventh-grade year,

when two male students approached her and said "I hear you have a

hot dog in your pants."         Id. at 1564.        Over the next year and a

half, other students regularly made similarly offensive remarks to

plaintiff and spread sexual rumors and innuendoes about her.                    Id.

During this period, plaintiff and her parents spoke with her school
counselor    on    numerous      occasions      and     asked    him   to     stop       the

harassment.        The   counselor      told    them    he    would    take       care    of

everything, but he initially did nothing more than warn some of the

offenders, stating that "boys will be boys."                       Id. at 1564-65.

After the harassment and complaints had continued for more than a

year, the counselor suspended two of the students.                        Id. at 1565.

By that time, however, going to school had become emotionally

difficult for plaintiff, and she ultimately transferred to a

private school at her parents' expense in order to avoid the

harassment.       Id. at 1565-66.

     Plaintiff      filed    suit      under    Title    IX     against     the    school

district and several school officials for their failure to take

action to stop the sexual harassment inflicted upon her by her

classmates.       Id. at 1563.      Denying defendants' motion to dismiss

for failure to state a claim, the court held that Title IX

proscribes the same type of hostile environment sexual harassment

prohibited by Title VII.          Id. at 1571-75.         In addition to relying

on Franklin and Title IX's legislative history, the court looked to

findings of the Department of Education's Office of Civil Rights

("OCR").    Petaluma, 830 F.Supp. at 1572 (citing Patricia H. v.

Berkeley Unified Sch. Dist.,             830 F.Supp. 1288 (N.D.Cal.1993)).

These findings demonstrated an OCR belief that "an educational

institution's       failure       to     take      appropriate         response           to

student-to-student sexual harassment of which it knew or had reason

to know is a violation of Title IX."                     Id. at 1573 (citations

omitted).    The court concluded that to deny recovery to a sexually

harassed    student      under   the    hostile       environment      theory      "would
violate the Supreme Court's command to give Title IX a sweep as

broad as its language."       Id. at 1575.

      We likewise find it appropriate to apply Title VII principles

to the question before us.         As discussed in the foregoing cases,

such application is supported by Franklin, Title IX's legislative

history and the Supreme Court's mandate that we read Title IX

broadly, as well as by findings of the OCR.           In particular, the OCR

has found that a student is subjected to sexual harassment when

"unwelcome sexual advances, requests for sexual favors, or other

sex-based verbal or physical conduct ... has the purpose or effect

of    unreasonably    interfering    with     the    individual's      education

creating     an   intimidating,    hostile,    or   offensive    environment."

Letter of Findings by John E. Palomino, Regional Civil Rights

Director, Region IV (July 24, 1992), Docket No. 09-92-6002, at 2.4

The    OCR   also    has   found   that    "[w]hen    individuals       who    are

participating in a program or activity operated by an educational

institution are subjected to sexual harassment, they are receiving

treatment that is different from others."             Id.    Finally, the OCR

has found that "[i]f the harassment is carried out by non-agent

students,     the    institution     may      nevertheless      be     found    in

noncompliance with Title IX if it failed to respond adequately to

actual or constructive notice of the harassment."               Id.;    see also


      4
      OCR Letters of Findings are entitled to deference "as they
express the opinion of an agency charged with implementing Title
IX and its regulations." Petaluma, 830 F.Supp. at 1573. As the
Supreme Court has stated, "this Court normally accords great
deference to the interpretation, particularly when it is
longstanding, of the agency charged with the statute's
administration." North Haven, 456 U.S. at 522 n. 12, 102 S.Ct.
at 1918 n. 12.
Letter of Findings by Kenneth A. Mines, Regional Civil Rights

Director, Region V (April 27, 1993), Docket No. 05-92-1174, at 2-4.

Thus, in informally determining that Title IX prohibits peer sexual

harassment in the schools, the OCR has relied on Title VII hostile

environment principles.

     Application of these principles to Title IX claims by students

recognizes, as the Supreme Court acknowledged in Franklin, that a

student should have the same protection in school that an employee

has in the workplace.     See Franklin, 503 U.S. at 74-75, 112 S.Ct.

at 1037.    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,   as   economically

difficult as it may be for adults to leave a hostile workplace, it

is virtually impossible for children to leave their assigned

school.    Finally, "[a] nondiscriminatory environment is essential

to maximum intellectual growth and is therefore an integral part of

the educational benefits that a student 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 (quotation omitted).

         Thus, we conclude that as Title VII encompasses a claim for

damages due to a sexually hostile working environment created by

co-workers and tolerated by the employer, Title IX encompasses a

claim for damages due to a sexually hostile educational environment

created by a fellow student or students when the supervising

authorities knowingly fail to act to eliminate the harassment.5
Cf. Franklin, 503 U.S. at 74-75, 112 S.Ct. at 1037;   see Murray, 57

F.3d at 249;     Petaluma, 830 F.Supp. at 1575.   But see Seamons v.

Snow, 864 F.Supp. 1111, 1118 (D.Utah 1994).

     In this case, by requiring that a school employee commit the

harassing action in order for Davis to state a claim, the district

court failed to recognize the nature of a claim for hostile

environment sexual harassment.     The court dismissed the complaint

because, in its view, "any harm to LaShonda was not proximately

     5
      The Board argues that Title VII caselaw is inapplicable to
Title IX because Title IX was enacted under the spending clause.
The Supreme Court, however, has relied on Title VII in analyzing
claims under Title VI, which also was enacted under the spending
clause. In Guardians Association v. Civil Service Commission,
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
provision in Title VII in Griggs v. Duke Power Co. [401 U.S. 424,
91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ]...." 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, we have 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, and therefore is no bar to importing its standards into
Title IX.
caused by a federally-funded educational provider" and neither the

Board    nor    an   employee    of   the   Board   "had   any   role   in   the

harassment." Aurelia D., 862 F.Supp. at 367 (emphasis added). The

court's rationale thus implicitly limited sexual harassment actions

to   quid      pro   quo    harassment,     which   conditions   benefits     or

maintenance of the status quo upon sexual favors.                This was not

Davis' claim. The evil Davis sought to redress through her hostile

environment claim was not the direct act of a school official

demanding sexual favors, but rather the officials' failure to take

action to stop the offensive acts of those over whom the officials

exercised control.           Title VII recognizes this distinction and

requires employers to take steps to assure that their employees'

working environment is free from sexual harassment regardless of

whether that harassment is caused by the sexual demands of a

supervisor or by the sexually hostile environment created by

supervisors or co-workers.            Henson v. Dundee, 682 F.2d 897, 905

(11th Cir.1982).6          Under this concept, when an employer knowingly

fails to take action to remedy a hostile environment caused by one


     6
      Other circuits also recognize employer liability under
Title VII based on the employer's failure to take action to
remedy a hostile environment created by co-workers. See Smith v.
Bath Iron Works, 943 F.2d 164, 165-66 (1st Cir.1991); Karibian
v. Columbia Univ., 14 F.3d 773, 779 (2d Cir.), cert. denied, ---
U.S. ----, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994); Levendos v.
Stern Entertainment, Inc., 909 F.2d 747, 749 (3d Cir.1990);
DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d
591, 593 (5th Cir.1995); 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); Carr v.
Allison Gas Turbine Div. Gen. Motors, 32 F.3d 1007, 1009 (7th
Cir.1994); Hall v. Gus Construction Co., 842 F.2d 1010, 1015-16
(8th Cir.1988); Nichols v. Frank, 42 F.3d 503, 508 (9th
Cir.1994); Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1345-46
(10th Cir.1990).
co-worker's     sexual       harassment   of    another,     the    employer

"discriminate[s] against ... an[ ] individual" in violation of

Title VII, 42 U.S.C. § 2000e-2(a)(1).

      Likewise, when an educational institution knowingly fails to

take action to remedy a hostile environment caused by a student's

sexual harassment of another, the harassed student has "be[en]

denied the benefits of, or be[en] subjected to discrimination

under" that educational program in violation of Title IX, 20 U.S.C.

§ 1681(a).    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 (quotation 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.

       Having determined that Title IX encompasses a claim for a

hostile learning environment created by peer sexual harassment, we

must consider the sufficiency of Davis' allegations.           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. Cf. Meritor, 477 U.S. at 66-73, 106 S.Ct. at 2405-08;

see also Harris v. Forklift Sys. Inc., --- U.S. ----, ---- - ----,

114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993);            Lipsett, 864 F.2d
at 898-902.

     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, we 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 "when 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, --- U.S. at ----, 114 S.Ct. at 370

(quoting Meritor, 477 U.S. at 64-65, 106 S.Ct. at 2404) (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.       Id. at ----, 114 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 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. at ---- - ---

-, 114 S.Ct. at 370-71.

      Turning to the case before us in light of the relevant

factors, we find the five months of alleged harassment 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.;                (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, we consider the fifth and final element—whether any

basis for the Board's liability has been shown.                   Under Title VII,

whether the harassing conduct of a supervisor or co-worker should

be   imputed    to   the   employer      is   determined     in     accordance   with

common-law principles of agency.              See Meritor, 477 U.S. at 72, 106

S.Ct. at 2408;       Murray, 57 F.3d at 249.         Under the agency theory of

respondeat superior, this court holds employers liable for a

hostile environment created by a co-worker where the plaintiff can
show that "the employer knew or should have known of the harassment

in question and failed to take prompt remedial action."                  Henson,

682 F.2d at 905.      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."         Id. (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,

her mother and other students. Finally, Davis alleged that despite

this knowledge, the school officials failed to take prompt and

remedial    action   to    end    the   harassment.7      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.

                                 IV. CONCLUSION

     In light of the foregoing, we affirm the district court's

judgment with the exception of its dismissal of the Title IX claim

against the Board.        We reverse the district court's dismissal of

that claim and remand for proceedings consistent herewith.

     AFFIRMED in part;       REVERSED in part;      REMANDED.

     7
      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.
     BIRCH, Circuit Judge, concurring in part and dissenting in
part:

     Although I concur in the court's affirmance of the district

court's dismissal of Davis's section 1983 claim, I disagree with

the majority's holding that Davis's allegations state a valid claim

against the Monroe County Board of Education under Title IX of the

Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1990 &

Supp.1995) ("Title IX").

     This case does not involve allegations that an employee of the

school district sexually harassed LaShonda D., but rather that the

school district negligently failed to prevent another student from

harassing LaShonda.         The majority is correct in noting that the

Supreme Court has held that "Title IX is enforceable through an

implied right of action."           Franklin v. Gwinnett County Pub. Sch.,

503 U.S. 60, 65, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992)

(citing Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct.

1946,    60   L.Ed.2d    560     (1979)).   However,      Franklin    involved    a

high-school student's allegations that a teacher had sexually

harassed and assaulted her, and that school officials, who had

actual knowledge of the teacher's conduct, failed to intervene.

503 U.S. at 63-64, 112 S.Ct. at 1031-1032.             The student-on-student

sexual harassment alleged in this case is analytically quite

distinct      from   that   in    Franklin,   and   the    majority    makes     an

unprecedented extension in holding that Title IX encompasses a

claim of hostile environment sexual harassment based on the conduct

of a student.        There is no indication in the language of Title IX

that such a cause of action was intended to be covered by its

scope;    rather, the statute states that "[n]o person in the United
States   shall,    on   the    basis    of     sex,   ...   be   subjected   to

discrimination under any educational program or activity receiving

Federal financial assistance." 20 U.S.C. § 1681(a). In this case,

the school board, which is clearly an educational "program or

activity" under 20 U.S.C. § 1687, is not alleged to have committed

any act of harassment against LaShonda, nor is any employee of the

school board. Rather, the plaintiff seeks to hold the school board

liable for negligently failing to prevent another student, not its

employee, from sexually harassing LaShonda.              In my opinion, this

student-on-student sexual harassment case clearly falls outside the

purview of Title IX.

     Even if I were to accept the majority's conclusion that Title

IX encompasses student-on-student sexual harassment, I would limit

that holding to intentional conduct on the part of the school

board.      Here, what is alleged is that the school board was

negligent    in   failing     to   intervene    to    prevent    the   recurring

student-on-student harassment.         The majority relies on Franklin in

reaching its conclusion that Title IX covers such behavior, even

though the Franklin case involved intentional behavior on the part

of a teacher;      absent an indication to the contrary,                Franklin

should be limited to its facts.              But rather than do this, the

majority not only broadly reads it to cover student-on-student

sexual harassment, but also to cover negligent behavior on the part

of the school board.

     Lastly, I would limit the remedy available to a plaintiff in

the case of unintentional violations of Title IX to injunctive

relief. Franklin involved intentional discrimination by the school
board on the basis of sex, and thus involved an intentional

violation of Title IX.      The Supreme Court has held that in the case

of   intentional   violations    of    Title     IX,   monetary    damages    are

available to the victim of the sexual harassment.                 Franklin, 503

U.S. 73-75, 112 S.Ct. at 1037.           What the Supreme Court did not

decide in Franklin, however, was whether monetary damages are

available in cases involving unintentional violations of Title IX.

Most courts have interpreted Title IX along the same lines as

similar statutes, such as Title VI of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000d-2000d-4a (1994 & Supp.1995).             Since the Supreme

Court has expressly found that Title VI does not support a monetary

damages remedy for Title VI violations not involving intentional

discrimination, Guardians Ass'n v. Civil Service Comm'n, 463 U.S.

582, 602-03, 103 S.Ct. 3221, 3232-33, 77 L.Ed.2d 866 (1983), we

similarly   should   find    that     monetary    damages    are    limited   to

intentional violations of Title IX.1           Therefore, even if I were to

accept the majority's argument that Title IX applies to the conduct

at issue in this case, I would limit the remedy available to the

plaintiff to injunctive relief.

      Accordingly, I CONCUR in part and DISSENT in part.



      1
      At least one federal district court has reached this
conclusion as well. See Doe v. Petaluma City Sch. Dist., 830
F.Supp. 1560, 1571 (N.D.Cal.1993) (finding that "Title IX does
prohibit hostile environment sexual harassment but that to obtain
damages (as opposed to declaratory or injunctive relief), one
must allege and prove intentional discrimination on the basis of
sex by an employee of the educational institution"). The Doe
court specifically held that "[t]o obtain damages, it is not
enough that the institution knew or should have known of the
hostile environment and failed to take appropriate action to end
it." Id.
