Title IX's invisible ink.

How the Supreme court made up "student-on-student" harassment law

"Next year, kids will be suspended for behavior nobody's ever been suspended for," said Bruce Hunter of the American Association of School Administrators. He was forecasting the likely results of the Supreme Court's May 24 ruling, in Davis v. Monroe County Board of Education, that schools and universities which take federal money can be sued for damages in federal court if they do not respond adequately to complaints of student-on-student sexual harassment.

Most of the nation's editorialists joined the Clinton administration, feminists, and trial lawyers in hailing this new extension of harassment law. The Court "has caught up with the times," said the Seattle Post-Intelligencer. "Overdue," agreed USA Today. "Schools that teach students to respect each other will have nothing to fear," declared The Hartford Courant. Both the St. Louis Post-Dispatch and American Lawyer curiously described the decision as a "victory for students," seeming to forget that its whole point is to penalize schools for not punishing some students severely enough. Maybe the idea is that only accusers in these disputes truly count as "students," while the accused do not.

Singled out for applause by many commentators was the Court's allegedly stringent-yet-balanced new standard for liability: Schools pay damages only if they've shown "deliberate indifference" to "known acts of harassment" that are so "severe, pervasive, and objectively offensive" as to impair "equal access" to education. According to the majority opinion by Justice Sandra Day O'Connor, these curbs on liability should allay worries that "simple acts of teasing and name-calling" will end up as fodder for suits, or that courts will find themselves "second guessing the disciplinary decisions made by school administrators."

To four dissenters - Justice Anthony Kennedy, plus the Court's conservative wing - these reassurances seemed at best wishful thinking. Plaintiffs' lawyers, Kennedy predicted in his opinion, will soon be tailoring allegations to generate plausible lawsuits under the Court's standard. They might, for example, allege that "severe" and persistent teasing impairs a claimant's "equal access" to an education by interfering with her ability to concentrate in class; or they might cite a school system's failure to adopt approved sensitivity training as evidence of its "deliberate indifference" to misconduct. The result, said Kennedy, will be not only a massive shift of power from the local to the federal level but also an "avalanche" of liability and defense costs chargeable to hapless taxpayers. In hopes of dodging such suits, many schools "will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them."

Indeed, for several years already federal regulators have been twisting schools' arms to adopt anti-harassment policies, while individual suits have mushroomed around the country. "We already have a large number of these cases," an attorney who represents local school districts told the Fort Worth Star-Telegram. "We will see a whole lot more." The newspaper reported that Fort Worth schools were hit with a "deluge" of harassment complaints after school officials hired the Women's Center of Tarrant County to develop an awareness program in which students were shown a film encouraging them to file charges. In California last August, the San Francisco Recorder reports, the Laguna Salada Union School District in Pacifica "settled out of court for $160,000 after a mother accused school officials of failing to protect her 10-year-old son from anti-gay slurs."

The replacement of local with federal authority, the prospect of endless litigation, the encouragement given to speech codes and other better-safe-than-sued precautions, the prospect of unforgiving crackdowns on childish misbehavior whose very childishness will be seen as no defense - all are legitimate worries after Davis v. Monroe. But there is a further problem that drew relatively little attention in the press but figured prominently in the Court's dissent. It has to do with the chief reason why the Court finds it so troublesome to interpret the provision in federal law authorizing damage suits against schools and colleges for sex discrimination: namely, that there is no such provision.

That assertion may seem startling, so let me repeat it. The reason it's so hard to discern the exact boundaries of the clause in federal law that provides for private lawsuits over sex bias in education is that there is no such clause. Courts have simply decided that it would be nice if such a right to sue existed, that it would advance the goals of sex discrimination law to have it in there, and that Congress must therefore have meant to create it. They have accordingly felt entitled to step into the gap and create the right from thin air - an "implied private right of action."

The implied private right of action has become the Little Man Who Wasn't There of our constitutional scheme, appearing again and again at the top of the stair to trip up unwary defendants, empower regulators, and enrich litigators. And the exasperated tone of the Davis dissent suggests that more justices than ever may be losing patience with the affront to separation of powers - not to mention the principle-free jurisprudence - engendered by these imaginatively derived rights to sue. In Davis, the Little Man turned up once again, with incalculable consequences for the nation's school administrators; it's time he went away.

Congress is perfectly capable, when it sees fit, of creating rights for private parties to sue. That's what it did when it banned discrimination in employment and public accommodations in the Civil Rights Act of 1964. Eight years later, when it moved on to the question of sex bias in education, it passed quite a different kind of law. While the 1964 act applies to private parties generally, Title IX of the Education Amendments of 1972 applies only to schools and universities that accept federal money, and the law by its terms entrusts responsibility for enforcement only to the federal government, whose basic lever in imposing its will, it seemed safe to assume, would be the threat to cut off funding.

But it wasn't so safe to assume that. By coincidence the heyday of implied private rights of action had also commenced back in 1964, in a case where the Court blithely announced a new right for a company's shareholders to sue it for violating certain federal regulations even though no law giving them such a right could be found on the federal books. Soon the Court was spotting implied private rights of action all over the place, even in what seemed quite unpromising statutory material.

Thus, one statute had explicitly listed rights it was creating for private parties, and its list did not include a right to sue; the Court found an implied right anyway. In another case, it found an implied right in a statute whose backers had originally sought to include a private right to sue in the bill, but dropped that proposal to win the support needed for passage. The same Court also found it significant that, while the law under scrutiny said nothing about creating a right to sue, individual members of a subsequent Congress had spoken favorably about the idea.

Even at the giddy height of the Court's infatuation with its new Invisible Ink Reading Method, however, it was clear that none of its members had any wish to apply the technique across the board. Civil rights statutes were prime candidates for the creative use of implication, but the Court declined many requests to conjure up implied rights in less glamorous economic and regulatory areas of the law. It wasn't easy to find a principled basis for such differences in treatment, and the purported guidelines the justices came up with to explain its decisions - such as whether a proposed new right would be "helpful to the accomplishment of the statutory purpose" - were embarrassingly well suited to making cases come out whichever way they wanted.

In the years since then, the Court's enthusiasm for finding hidden causes of action has cooled, and it has worked its way through at least three successive standards for when to infer rights and when not to. Though increasingly reluctant to read implied rights into statutes of newer vintage, it has retained a more elastic view of laws passed during its liberal period, such as Title IX - apparently on the view that since Congress back then knew the Court had a reputation for stretching laws, laws dating from that era may be stretched forever.

The result is a guessing game as to who can be sued over what. Private actors find it hard enough to forecast their liability and stay out of trouble in the case of statutes that are imprecisely worded but at least exist. When the statutes don't exist in the first place, the uncertainties naturally rise to a new level.

Until Davis, one of the few reliable rules of thumb in this area was thought to be that rights-by-implication were disfavored when they threatened to intrude into areas of traditional state concern (such as, say, school administration). In particular, the Court had indicated that if Congress intends to encroach on state autonomy by attaching expensive strings to federal money, it must speak "with a clear voice." But that guidepost now seems to have been flattened as well.

In practice, it would seem, the dimensions of today's Title IX right to sue are whatever O'Connor, the Court's moderate swing vote, says they are. Sometimes, as in Gebser v. Lago Vista (1998), which like Davis was decided by a 5-to-4 vote, she sides with the conservatives. In that case, schools avoided liability for teacher misconduct they didn't know about or couldn't have fixed. Other times, as in Davis, O'Connor joins the liberals but seems to negotiate them down to a compromise position professedly reserving the right to sue for severe or egregious cases, given "the inevitability of student misconduct and the amount of litigation that would be invited" by going further (to quote her opinion in Davis). There is a word for this process of drafting via negotiated tradeoff: legislation.

But legislation from the bench differs in its outcomes from legislation emanating from the branch that the Founders happened to entrust with that function, namely Congress. When Congress is forced explicitly to consider establishing rights to sue, regulated parties usually put up a fight and score some defensive victories. As a result of such resistance, the Civil Rights Act of 1964 and most similar laws limit the type and amount of damages that can be awarded under their terms. When courts invent implied rights, on the other hand, they typically decline to adopt limits to the damages that can be claimed thereunder - courts mustn't be arbitrary, after all. The outrageous result is that advocates of these laws can obtain a right to sue that is more expansive and lucrative if they sneak it in after the fact by judicial fiat than if they openly ask for it during congressional consideration.

As happens so often in the capital's perennial shell game, shifting the pea of responsibility from the more to the less politically accountable of the institutional walnuts enables both branches to evade constitutional limits on their power. Congress, eager for popularity, gets to endorse feel-good propositions (we're against discrimination) while handing off the unpleasant particulars (by the way, you might get sued under this law) to a branch more insulated from angry constituents.

In turn, as Justice Lewis Powell observed, the courts obtain a great deal of new power, and in particular are "free to reach a result different from that which the normal play of political forces would have produced." It's hard to escape the conclusion Powell himself drew: Liberal creation of implied rights of action "cannot be squared with the doctrine of the separation of powers."

Justice Antonin Scalia reached a similar conclusion in his concurrence in Thompson v. Thompson (1988). The costs of requiring Congress to be explicit about issues of such moment, he noted, are at most slight. The costs of the guessing game over claims of implied rights, experience has now shown, are severe and continuing. The safer course, as well as the more constitutional, would be for the Court to announce that rights to sue will not henceforth be derived from statutory silence, thus giving Congress an unmistakable signal that it must reshoulder its proper responsibility. "If a change is to be made," Scalia wrote, "we should get out of the business of implied private rights of action altogether."

Contributing Editor Walter Olson ([e-mail]), a senior fellow at the Manhattan Institute, wrote about harassment law in The Excuse Factory (The Free Press).