Appeals from the United States District Court for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge. (CA-95-1358-R)
Before HALL, LUTTIG, and MOTZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote the majority opinion, in which Judge Hall joined. Judge Luttig wrote a dissenting opinion.
This case arises from the gang rape of a freshman at the Virginia Polytechnic Institute by two members of the college football team, and the school's decision to impose only a nominal punishment on the rapists. The victim alleges that these rapes were motivated by her assailants' discriminatory animus toward women and sues them pursuant to the Violence Against Women Act of 1994. She asserts that the university knew of the brutal attacks she received and yet failed to take any meaningful action to punish her offenders or protect her, but instead permitted a sexually hostile environment to flourish; she sues the university under Title IX of the Education Amendments of 1972. The district court dismissed the case in its entirety. The court held that the complaint failed to state a claim under Title IX and that Congress lacked constitutional authority to enact the Violence Against Women Act. Because we believe that the complaint states a claim under Title IX and that the Commerce Clause provides Congress with authority to enact the Violence Against Women Act, we reverse and remand for further proceedings.
Christy Brzonkala entered Virginia Polytechnic Institute ("Virginia Tech") as a freshman in the fall of 1994. *fn1 On the evening of September 21, 1994, Brzonkala and another female student met two men who Brzonkala knew only by their first names and their status as members of the Virginia Tech football team. Within thirty minutes of first meeting Brzonkala, these two men, later identified as Antonio Morrison and James Crawford, raped her.
Brzonkala and her friend met Morrison and Crawford on the third floor of the dormitory where Brzonkala lived. All four students talked for approximately fifteen minutes in a student dormitory room. Brzonkala's friend and Crawford then left the room.
Morrison immediately asked Brzonkala if she would have sexual intercourse with him. She twice told Morrison "no," but Morrison was not deterred. As Brzonkala got up to leave the room Morrison grabbed her, and threw her, face-up, on a bed. He pushed her down by the shoulders and disrobed her. Morrison turned off the lights, used his arms to pin down her elbows and pressed his knees against her legs. Brzonkala struggled and attempted to push Morrison off, but to no avail. Without using a condom, Morrison forcibly raped her.
Before Brzonkala could recover, Crawford came into the room and exchanged places with Morrison. Crawford also raped Brzonkala by holding down her arms and using his knees to pin her legs open. He, too, used no condom. When Crawford was finished, Morrison raped her for a third time, again holding her down and again without a condom.
When Morrison had finished with Brzonkala, he warned her "You better not have any fucking diseases." In the months following the rape, Morrison announced publicly in the dormitory's dining room that he "like[d] to get girls drunk and fuck the shit out of them."
Following the assault Brzonkala's behavior changed radically. She became depressed and avoided contact with her classmates and residents of her dormitory. She changed her appearance and cut off her long hair. She ceased attending classes and eventually attempted suicide. She sought assistance from a Virginia Tech psychiatrist, who treated her and prescribed anti-depressant medication. Neither the psychiatrist nor any other Virginia Tech employee or official made more than a cursory inquiry into the cause of Brzonkala's distress. She later sought and received a retroactive withdrawal from Virginia Tech for the 1994-95 academic year because of the trauma.
Approximately a month after Morrison and Crawford assaulted Brzonkala, she confided in her roommate that she had been raped, but could not bring herself to discuss the details. It was not until February 1995, however, that Brzonkala was able to identify Morrison and Crawford as the two men who had raped her. Two months later, she filed a complaint against them under Virginia Tech's Sexual Assault Policy, which was published in the Virginia Tech"University Policies for Student Life 1994-1995." These policies had been formally released for dissemination to students on July 1, 1994, but had not been widely distributed to students. After Brzonkala filed her complaint under the Sexual Assault Policy she learned that another male student athlete was overheard advising Crawford that he should have "killed the bitch."
Brzonkala did not pursue criminal charges against Morrison or Crawford, believing that criminal prosecution was impossible because she had not preserved any physical evidence of the rape. Virginia Tech did not report the rapes to the police, and did not urge Brzonkala to reconsider her decision not to do so. Rape of a female student by a male student is the only violent felony that Virginia Tech authorities do not automatically report to the university or town police.
Virginia Tech held a hearing in May 1995 on Brzonkala's complaint against Morrison and Crawford. At the beginning of the hearing, which was taped and lasted three hours, the presiding college official announced that the charges were being brought under the school's Abusive Conduct Policy, which included sexual assault. A number of persons, including Brzonkala, Morrison, and Crawford testified. Morrison admitted that, despite the fact that Brzonkala had twice told him "no," he had sexual intercourse with her in the dormitory on September 21. Crawford, who denied that he had sexual contact with Brzonkala (a denial corroborated by his suitemate, Cornell Brown), confirmed that Morrison had engaged in sexual intercourse with Brzonkala.
The Virginia Tech judicial committee found insufficient evidence to take action against Crawford, but found Morrison guilty of sexual assault. The university immediately suspended Morrison for two semesters (one school year), and informed Brzonkala of the sanction. Morrison appealed this sanction to Cathryn T. Goree, Virginia Tech's Dean of Students. Morrison claimed that the college denied him his due process rights and imposed an unduly harsh and arbitrary sanction. Dean Goree reviewed Morrison's appeal letter, the file, and tapes of the three-hour hearing. She rejected Morrison's appeal and upheld the sanction of full suspension for the Fall 1995 and Spring 1996 semesters. Dean Goree informed Brzonkala of this decision in a letter dated May 22, 1995. According to Virginia Tech's published rules, the decision of Dean Goree as the appeals officer on this matter was final.
In the first week of July 1995, however, Dean Goree and another Virginia Tech official, Donna Lisker, personally called on Brzonkala at her home in Fairfax, Virginia, a four-hour drive from Virginia Tech. These officials advised Brzonkala that Morrison had hired an attorney who had threatened to sue the school on due process grounds, and that Virginia Tech thought there might be merit to Morrison's "ex post facto" challenge that he was charged under a Sexual Assault Policy that was not yet spelled out in the Student Handbook. *fn2 Dean Goree and Ms. Lisker told Brzonkala that Virginia Tech was unwilling to defend the school's decision to suspend Morrison for a year in court, and a re-hearing under the Abusive Conduct Policy that pre-dated the Sexual Assault Policy was required. To induce Brzonkala to participate in a second hearing, Dean Goree and Ms. Lisker assured her that they believed her story, and that the second hearing was a mere technicality to cure the school's error in bringing the first complaint under the Sexual Assault Policy.
The Virginia Tech judicial committee scheduled the second hearing for late July. This hearing turned out to be much more than a mere formality, however. The second hearing lasted seven hours, more than twice as long as the first hearing. Brzonkala was required to engage her own legal counsel at her own expense. Moreover, the university belatedly informed her that student testimony given at the first hearing would not be admissible at the second hearing and that if she wanted the second judicial committee to consider this testimony she would have to submit affidavits or produce the witnesses. Because she received insufficient notice, it was impossible for Brzonkala to obtain the necessary affidavits or live testimony from her student witnesses. In contrast, the school provided Morrison with advance notice so that he had ample time to procure the sworn affidavits or live testimony of his student witnesses. Virginia Tech exacerbated this difficulty by refusing Brzonkala or her attorney access to the tape recordings of the first hearing, while granting Morrison and his attorney complete and early access to those tapes. Finally, Virginia Tech officials prevented Brzonkala from mentioning Crawford in her testimony because charges against him had been dismissed; as a result she had to present a truncated and unnatural version of the facts.
Nevertheless, after the second hearing, the university judicial committee found that Morrison had violated the Abusive Conduct Policy, and re-imposed the same sanction: an immediate two semester suspension. On August 4, 1995, the college again informed Brzonkala, in writing, that Morrison had been found guilty and been suspended for a year.
Morrison again appealed. He argued due process violations, the existence of new information, and the asserted harshness and arbitrariness of the sanction imposed on him as grounds for reversal of the judicial committee's decision. Senior Vice-President and Provost Peggy Meszaros overturned Morrison's sanction on appeal. She found "that there was sufficient evidence to support the decision that [Morrison] violated the University's Abusive Conduct Policy and that no due process violation occurred in the handling of[Morrison's] case." However, the Provost concluded that the sanction imposed on Morrison -- immediate suspension for one school year-- was "excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy." Provost Meszaros did not elaborate on the "other cases" to which she was referring. Instead of an immediate one year suspension, the Provost imposed "deferred suspension until [Morrison's] graduation from Virginia Tech." In addition, Morrison was "required to attend a one-hour educational session with Rene Rios, EO/AA Compliance Officer regarding acceptable standards under University Student Policy."
Provost Meszaros informed Morrison of the decision to set aside his sanction by letter on August 21, 1995. Although Brzonkala had been informed in writing of the result at every other juncture in the disciplinary proceedings, Virginia Tech did not notify her that it had set aside Morrison's suspension or that he would be returning to campus in the Fall. Instead, on August 22, 1995, Brzonkala learned from an article in The Washington Post that the university had lifted Morrison's suspension and that he would return in the Fall 1995 semester. In fact, Morrison did return to Virginia Tech in the Fall of 1995 -- on a full athletic scholarship.
Upon learning that the university had set aside Morrison's suspension and was permitting him to return in the Fall, Brzonkala canceled her own plans to return to Virginia Tech. She feared for her safety because of previous threats and Virginia Tech's treatment of Morrison. She felt that Virginia Tech's actions signaled to Morrison, as well as the student body as a whole, that the school either did not believe her or did not view Morrison's conduct as improper. She was also humiliated by the procedural biases of the second hearing and by the decision to set aside the sanction against Morrison. Brzonkala attended no university or college during the Fall 1995 term.
On November 30, 1995, Brzonkala was shocked to learn from another newspaper article that the second Virginia Tech judicial committee did not find Morrison guilty of sexual assault, but rather of the reduced charge of "using abusive language." Despite the fact that the school had accused and convicted Morrison of sexual assault at the initial hearing, despite Morrison's testimony at that hearing that he had had sexual intercourse with Brzonkala after she twice told him "no," and despite the fact that Dean Goree and Donna Lisker had unambiguously stated that the second hearing would also address the "sexual assault" charge against Morrison, the administrators altered the charge. The university never notified either Brzonkala or her attorney about the change, leaving her to learn about it months after the fact from a newspaper article.
Brzonkala believes and so alleges that the procedural irregularities in, as well as the ultimate outcome of, the second hearing were the result of the involvement of Head Football Coach Frank Beamer, as part of a coordinated university plan to allow Morrison to play football in 1995.
On December 27, 1995, Brzonkala initially filed suit against Morrison, Crawford, and Virginia Tech; on March 1, 1996, she amended her complaint. She alleged inter alia that Virginia Tech, in its handling of her rape claims and failure to punish the rapists in any meaningful manner, violated Title IX of the Education Amendments of 1972, 20 U.S.C. Section(s) 1681-1688 (1994). She also alleged that Morrison and Crawford brutally gang raped her because of gender animus in violation of Title III of the Violence Against Women Act of 1994, 42 U.S.C. Section(s) 13981 (1994) ("VAWA"). The United States intervened to defend the constitutionality of VAWA.
On May 7, 1996 the district court dismissed the Title IX claims against Virginia Tech for failure to state a claim upon which relief could be granted. See Brzonkala v. Virginia Polytechnic & State Univ., 935 F. Supp. 772 (W.D. Va. 1996) (" Brzonkala I"). On July 26, 1996 the court dismissed Brzonkala's VAWA claims against Morrison and Crawford, holding that although she had stated a cause of action under VAWA, enactment of the statute exceeded Congressional authority and was thus unconstitutional. See Brzonkala v. Virginia Polytechnic & State Univ., 935 F. Supp. 779 (W.D. Va. 1996) ("Brzonkala II").
Title IX of the Education Amendments of 1972 provides in relevant part:
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. Section(s) 1681(a).
Virginia Tech concedes that it is an "education program . . . receiving Federal financial assistance." Hence, we need only determine whether Brzonkala has stated a claim that she was"subjected to discrimination" by Virginia Tech "on the basis of sex." 20 U.S.C. Section(s) 1681(a). The district court recognized that Brzonkala pled a Title IX claim on the basis of two distinct legal theories: a hostile environment theory, that Virginia Tech responded inadequately to a sexually hostile environment; and a disparate treatment theory, that Virginia Tech discriminated against Brzonkala because of her sex in its disciplinary proceedings. *fn3 The district court rejected both, holding that her complaint failed to state a Title IX claim on which relief could be granted under either theory. See Brzonkala I, 935 F. Supp. at 775-78. We now consider whether Brzonkala stated a claim under either of these theories.
We begin with the hostile environment claim. *fn4 To assess Brzonkala's Title IX hostile environment assertions we must address two issues: (1) what legal standard to apply to a hostile environment claim under Title IX and (2) whether Brzonkala's complaint satisfies that standard.
Title IX unquestionably prohibits federally supported educational institutions from practicing "discrimination""on the basis of sex." 20 U.S.C. Section(s) 1681(a) (1994). Because of Title IX's"short historical parentage," Doe v. Claiborne County, Tenn., 103 F.3d 495, 514 (6th Cir. 1996), we have not previously faced a hostile environment claim under Title IX. Therefore, in determining whether an educational institution's handling of a known sexually hostile environment is actionable "discrimination" under Title IX, we must look to the extensive jurisprudence developed in the Title VII context. See Preston v. Virginia ex rel. New River Community College, 31 F.3d 203, 207 (4th Cir. 1994) ("Title VII, and the judicial interpretations of it, provide a persuasive body of standards to which we may look in shaping the contours of a private right of action under Title IX."); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993) ("Title VII . . . is `the most appropriate analogue when defining Title IX's substantive standards . . . .'"); Lipsett v. University of P.R., 864 F.2d 881, 896 (1st Cir. 1988) ("Because Title VII prohibits the identical conduct prohibited by Title IX, i.e., sex discrimination" Title VII is "the most appropriate analogue when defining Title IX's substantive standards . . . .") (citation omitted); see also Franklin v. Gwinnett County Public Sch., 503 U.S. 60, 75 (1992) (holding Title IX provides a private cause of action for damages arising from sexual harassment and relying on Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986), a Title VII hostile environment case, to define"discrimination" under Title IX); H.R. Rep. No. 554 (1971) reprinted in 1972 U.S.C.C.A.N. 2462, 2512 (explaining that Title IX meant to provide coverage similar to Title VII for "those in education"); and the many cases adopting Title VII analysis in a Title IX hostile environment context listed infra at 21-22. *fn5 The district court properly followed this approach and applied Title VII standards to determine Virginia Tech's liability for a hostile environment under Title IX. See Brzonkala I, 935 F. Supp. at 776-78.
Virginia Tech argues that this was error, relying solely upon Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996). Rowinsky dealt with a hostile environment claim by two female students against a school district for its response to sexual harassment by certain male students. A divided panel of the Fifth Circuit defined the question presented as "whether the recipient of federal education funds can be found liable for sex discrimination when the perpetrator is a party other than the grant recipient or its agents." Id. at 1010. In answering this question, the court determined that the language and legislative history of Title IX indicated that the statute "applies only to the practices of the recipients themselves," not third parties. Id. at 1013. The Rowinsky court reasoned that Title VII principles were inapplicable because "[i]n an employment context, the actions of a co-worker sometimes may be imputed to an employer through a theory of respondeat superior," but a school may not be held responsible for the harassment of one student by another. Id. at 1011 n.11. Accordingly, the Fifth Circuit held that "[i]n the case of [Title IX] peer sexual harassment, a plaintiff must demonstrate that the school district responded to sexual harassment claims differently based on sex. Thus, a school district might violate Title IX if it treated sexual harassment of boys more seriously than sexual harassment of girls . . . ." Id. at 1016.
We have no trouble agreeing with the Fifth Circuit that Title IX "applies only to the practices of the recipients themselves." Id. at 1013. However, in this respect Title IX is no different from Title VII -- the Rowinsky majority's failure to recognize this results in a deeply flawed analysis. In framing the question in terms of liability for the acts of third parties, Rowinsky misstates what a plaintiff, under either Title VII or Title IX, hopes to prove in a hostile environment claim. Under Title VII, a plaintiff cannot recover because a fellow employee sexually harassed the plaintiff, but only because an employer could have, but failed to, adequately remedy known harassment. As we recently noted, "an employer is liable for a sexually hostile work environment created by . . . [an] employee only if the employer knew or should have known of the illegal conduct and failed to take prompt and adequate remedial action." Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th Cir. 1996) (emphasis added). Consequently, a defendant employer is held responsible under Title VII for the employer's own actions, its inadequate and tardy response, not the actions of fellow employees. *fn6
Similarly, in a Title IX hostile environment action a plaintiff is not seeking to hold the school responsible for the acts of third parties (in this case fellow students). Rather, the plaintiff is seeking to hold the school responsible for its own actions, i.e. that the school "knew or should have known of the illegal conduct and failed to take prompt and adequate remedial action." Andrade, 88 F.3d at 261. Brzonkala is not attempting to hold Virginia Tech responsible for the acts of Morrison and Crawford per se; instead she is challenging Virginia Tech's handling of the hostile environment once she notified college officials of the rapes. Therefore, the entire focus of Rowinsky's analysis as to whether a school may be held responsible for the acts of third parties under Title IX misses the point. Brzonkala does not seek to make Virginia Tech liable for the acts of third parties. She seeks only to hold the school liable for its own discriminatory actions in failing to remedy a known hostile environment.
A defendant educational institution, like a defendant employer, is, of course, liable for its own discriminatory actions: even the Rowinsky majority acknowledges this. Rowinsky, 80 F.3d at 1012 (Title IX "prohibits discriminatory acts" by educational institutions receiving federal financial assistance). Responsibility for discriminatory acts includes liability for failure to remedy a known sexually hostile environment. Accordingly, the district court was correct in applying Title VII principles to define the contours of Brzonkala's hostile environment claim. We now turn to that application.
Under Title VII "to prevail on a `hostile work environment' sexual harassment claim, an employee must prove: (1) that he [or she] was harassed `because of' his [or her] `sex'; (2) that the harassment was unwelcome; (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer." Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996). Similarly, under Title IX a plaintiff asserting a hostile environment claim must show: "1) that she [or he] belongs to a protected group; 2) that she [or he] 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 [or his] education and create an abusive educational environment; and 5) that some basis for institutional liability has been established." Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996) (same); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995), cert. denied, 116 S. Ct. 1044 (1996) (same); Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1376 (N.D. Cal. 1997) (same); see also Doe, 103 F.3d at 515 (holding that the elements of a "hostile environment claim under Title VII equally apply under Title IX"); Oona, R.S. v. McCaffrey, 122 F.3d 1207, 1210 (9th Cir. 1997) (applying Title VII standards to Title IX hostile environment claim); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248-51 (2d Cir. 1995) (same); Collier v. William Penn Sch. Dist., 956 F. Supp. 1209, 1213-14 (E.D. Pa. 1997) (same); Pinkney v. Robinson, 913 F. Supp. 25, 32 (D.D.C. 1996) (same); Bosley v. Kearney R-1 School Dist., 904 F. Supp. 1006, 1021-22 (W.D. Mo. 1995) (same); Kadiki v. Virginia Commonwealth Univ., 892 F. Supp. 746, 749-50 (E.D. Va. 1995) (same); Ward v. Johns Hopkins Univ., 861 F. Supp. 367, 374 (D. Md. 1994) (same).
Virginia Tech concedes that Brzonkala has properly alleged the first three elements -- that she was a member of a protected class, that she was subject to unwelcome harassment, and that this harassment was based on her sex. Virginia Tech contends, however, that Brzonkala has not alleged that she was subjected to a sufficiently abusive environment, or established that Virginia Tech may be held liable for that environment. Accordingly, we address these two elements.
A Title IX plaintiff must allege sexual harassment"sufficiently severe or pervasive so as to alter the conditions of her education and create an abusive educational environment." Kinman, 94 F.3d at 468. Virginia Tech argues that because Brzonkala did not return to school she experienced no hostile environment. The district court agreed, holding that:
[T]he hostile environment that Brzonkala alleged never occurred. Brzonkala left [Virginia Tech] due to her concern of possible future reprisal in reaction to her pressing charges. She did not allege that this future reprisal actually occurred. Second, Brzonkala did not perceive that the environment was in fact abusive, but only that it might become abusive in the future. Brzonkala I, 935 F. Supp. at 778.
Brzonkala pled that she was violently gang raped, and rape "is `not only pervasive harassment but also criminal conduct of the most serious nature' that is `plainly sufficient to state a claim for `hostile environment' sexual harassment.'" Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995) (quoting Meritor, 477 U.S. at 67); cf. Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) ("Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee's sex."); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995) (citing Meritor and recognizing sexual assault as an extreme example of sexual harassment); Karen Mellencamp Davis, Note, Reading, Writing, and Sexual Harassment: Finding a ...