Smith v. Metropolitan School District Perry Township (128 F.3d 1014, 1997)

MANION, Circuit Judge.

Steve Rager, a teacher at Southport High School in Indianapolis, Indiana, had an affair with Heather Smith, then a senior at South-port, Heather sued Rager, the Metropolitan School District Perry Township, the Board of Metropolitan School District Perry Township, and the principal and assistant principal of Southport High School for,, among other things, violating Title IX’s prohibition against sex discrimination. The defendants unsuccessfully moved for summary judgment. We granted defendants permission to file an interlocutory appeal from that denial, and now reverse.

BACKGROUND

The following undisputed facts serve as background to this appeal. Heather Smith (Smith) was born on August 23, 1973. She first met defendant Steve Rager when she was a freshman at Southport High School. Rager taught physical education at Southport and also coached the boys’ swim team. Smith was a member of the girls’ swim team and often saw Rager at Southport’s .swim meets. Rager was also a friend of Smith’s parents.

The summer following her freshman year, Rager coached Smith through a community summer swimming program. Smith’s acquaintance with Rager continued during her sophomore and junior years at Southport and through her participation in the summer swimming program. Up to the summer before her senior year, Smith regarded Rager merely as her coach. But by her third year in the summer program, Smith came to regard Rager as “a very good friend” and “someone she could go to and talk.”

The following school year (1990-91) was 17-year-old Smith’s senior year. On the first day of classes Rager asked Smith to become his student assistant during her study hall period. Students at Southport had the option of serving as assistants to teachers during study hall, and approximately ten percent of the student body participated in this program. Student assistants usually typed, filed, or ran errands for the teacher. Smith obtained permission to become Rager’s student assistant and Rager cleared it with William Pickard, an assistant principal. Beginning in March of 1991, Smith also worked for Rager outside of school at his scuba shop.

In September 1990, shortly after Smith began as Rager’s student assistant, Rager made his first sexual advance on Smith: Rager asked Smith if, he. could give her a kiss, to which she responded with surprised silence. He then said, “You thought I was meaning the real thing,” and handed her a Hershe/s Kiss. He then said, “You wanted the real thing, didn’t you?” and kissed her. Smith kissed Rager back. This occurred in his office in the school building during the class period in which Smith was assigned as Rager’s student assistant.

Over the ensuing weeks, the kissing continued. Rager also began to put his hand up Smith’s skirt. Near the end of September, Rager took Smith into his office bathroom and they had sexual intercourse. On subsequent occasions, they had sex in the bathroom and in a “hospitality room” under the bleachers. Throughout the school year, Rag-er and Smith had sex about twice a week, always (except for two occasions) on school premises. Rager did not force himself on Smith and she did not resist his advances or tell him “no,” except with respect to oral sex, although she later complied with Rager’s initiations. Smith enjoyed the sexual relationship and found that she now trusted Rager more than ever. Rager told Smith that he loved her and Smith responded in kind. Smith told no one about the sexual relationship with Rager until it was over and no one ever saw them having sex together. During the school year, Rager and Smith concealed the relationship by engaging in sex quietly in locations where they would not be observed.

As time passed, Smith began to feel confused and disturbed. She was afraid to tell Rager “no” and worried that if she told her parents they would be disappointed. She also worried that she might get in trouble if she told school officials. She decided that while she would rather not engage in sex, in order to maintain the relationship and keep Rager happy, she- would have to continue to do so. In January 1991, Smith questioned Rager for the first time about discontinuing the sex. On that and later occasions, she asked him whether he would understand and remain her friend if they stopped having sex. Rager said he would. Smith nonetheless continued to have sex with Rager. In fact, their sexual relationship continued after Smith graduated from Southport High School. Finally, on July 12,1991, Smith told Rager that she wanted to stop. He asked her for “one last time,” and she agreed. After that, they engaged in sex once more on July 18,1991. There are other sordid details that occurred during the relationship, but because they add nothing to the legal analysis at issue in this ease, and only serve to further embarrass Smith, we need not elaborate.

On July 28, 1991, Smith told a male friend (whom she later dated and then married) about her relationship with Rager. The next day, at her friend’s urging, she told her parents about her sexual relationship with Rager. She and her parents then reported it to the sheriffs office and school officials. Two days later, school officials suspended Rager and advised him that if he did not resign he would be fired and lose his teaching license. Rager resigned the following day. The school district then sent a letter to the State Board of Education recommending that Rager’s teaching license be revoked.

Almost two years later, in May 1993, Smith and her parents filed a multi-count complaint against the Metropolitan School District Perry Township (“School District”), the Board of Metropolitan School District Perry Township (“School Board”), Lloyd Bodie, the principal of Southport High, Larry Hensley-Mars-hand, the assistant principal of Southport High School, and Rager. (Other defendants were originally named, but later voluntarily dismissed.) In Count I, Smith alleged a claim of sex discrimination under Title IX against the School District, School Board, Bodie and HensleyMarshand. Count II was brought by both Smith and.her parents under 42 U.S.C. § 1983 and alleged claims against the School District, School Board, Bodie and Hensley-Marshand and Rager for various alleged constitutional violations. Count III was a state law negligence claim brought against the School District, School Board, Bodie, HensleyMarshand and Rager. Counts IV and V- were state law claims against Rager for intentional infliction of emotional distress and seduction.

The School District, School Board, Bodie, and Hensley-Marshand moved for summary judgment. (Rager did not join in the motion for summary judgment and is not a party on appeal.) The district court granted their motion on the § 1983 claim alleged in Count II, but denied summary judgment on the Title IX claim alleged in Count I and the negligence claim alleged in Count III. The School District, School Board, Bodie and Hensley-Marshand requested the district court to certify for interlocutory appeal under 28 U.S.C. § 1292(b) the question of liability under Title IX. The district court did so, and we accepted the interlocutory appeal.

ANALYSIS

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____” 20 U.S.C. § 1681(a). In Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979), the Supreme Court held that Title IX implicitly provides a private right of action for sex discrimination. Smith brought such a private action here, alleging sexual harassment by Rager and naming as defendants the School District, the School Board, the principal and assistant principal of Southport High School.

I. Appropriate Defendants Under Title IX

Although the district court did not address the issue, this case presents an initial question concerning the appropriate defendant in a Title IX action. Because Smith’s lawsuit sought recovery against the principal and assistant principal of Southport High School, in both their official and individual capacities, before we consider the propriety of the district court’s ruling on the summary judgment motion, we must determine whether a claim under Title IX can be stated against such defendants.

First we consider the language of Title IX: “[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.” By its terms, Title IX prohibits discrimination only by a “program or activity” receiving federal funding. Accordingly, in Lipsett v. University of Puerto Rico, 864 F.2d 881, 884, 901 (1st Cir.1988), the First Circuit concluded that a claim could not be established under Title IX against a supervisory official, either individually or officially, since “[i]n implying a cause of action under Title IX, the Supreme Court has considered only actions against the educational institution itself.” Id. (citing Cannon, 441 U.S. 677, 99 S.Ct. 1946). Id. (“[T]he separate liability of the supervisory officials at the University must be established, if at all, under § 1983, rather than under Title IX.”). See Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir.1996) (Nelson, J., concurring) (“I do not believe that Title IX can appropriately be read as subjecting anyone other than educational institutions to liability for violation of its terms.”). Cf. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 (5th Cir.1996) (rejecting student-on-student sexual harassment claim because Title IX prohibits only discrimination by the grant recipient).

The majority of courts considering this issue also has concluded that only a grant recipient can violate Title IX. Burrow By and Through Burrow v. Postville Comm. Sch. Dist., 929 F.Supp. 1193, 1207 (N.D.Iowa 1996) (“The majority of lower courts explicitly addressing this issue have held that a damage remedy under Title IX is only available against an ‘education program or activity receiving Federal financial assistance,’ not individuals.”) (quoting Lillard, 76 F.3d at 730); Nelson v. Temple University, 920 F.Supp. 633, 638 (E.D.Pa.1996) (holding that a plaintiff cannot maintain a Title IX cause of action against an individual); Clay v. Board of Trustees of Neosho County Community College, 905 F.Supp. 1488, 1495 (D.Kan.1995) (“Title IX actions may only be brought against an educational institution, not an individual acting as an administrator or employee for the institution”); Bowers v. Baylor Univ., 862 F.Supp. 142, 145-46 (W.D.Tex. 1994) (dismissing Title IX claim against administrators and employees of educational institutions which were separately incorporated because they “do not constitute educational institutions in and of themselves”); Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560, 1576 (N.D.Cal.1993), reconsidered in part, 949 F.Supp. 1415 (N.D.Cal.1996) (holding that individuals may not be held personally liable under Title IX “[s]iñce the Act prohibits discrimination against beneficiaries in programs and activities that receive federal financial assistance, it is the educational institution that must be sued for violations of Title IX”); Roth v. School Bd. of Collier County, 1996 WL 391703 (M.D.Fla.1996) (unpublished decision) (individuals may not be held personally liable under Title IX).

A. Individual Capacity Liability

Because Title IX only protects against discrimination under any education program or activity receiving federal financial assistance, we agree with the First Circuit’s conclusion in Lipsett that a Title IX claim can only be brought against a grant recipient and not an individual. While the Supreme Court has not directly addressed this issue, such a premise underlies many of its decisions; “[t]he Supreme Court has repeatedly stated that the purpose of Title IX is. to prevent discrimination by grant recipients.” Rowinsky, 80 F.3d at 1013. Moreover, “[t]he fact that Title IX was enacted pursuant to Congress’s spending power is evidence that it prohibits discriminatory acts only by grant recipients.” Id. at 1012 (emphasis added). As the court in Rowinsky explained:

As an exercise of Congress’s spending power, Title IX makes funds available to a recipient in return for the recipient’s adherence to the conditions of the grant. While it is plausible that the condition imposed could encompass ending discriminatory behavior by third parties, the more probable inference is that the condition prohibits certain behavior by the grant recipients themselves.

Id. at 1012-13. “The legislative history of Title IX also supports limiting the statute to the practices of grant recipients ... [since] [throughout the legislative history, both supporters and opponents of the amendment focused exclusively on acts by the grant recipients.” Id. at 1013-14. Finally, “[t]his conclusion is reinforced by the statutory provision for administrative enforcement, which refers only to actions federal agencies may take against institutions.” Petaluma City, 830 F.Supp. at 1577, reconsidered in part, 949 F.Supp. 1415. For example, § 902 of the Act refers only to actions against institutions: “The ultimate sanction for noncompliance is termination of federal funds or denial of future grants.” Petaluma City, 830 F.Supp. at 1560 (quoting North Haven Bd. of Bduc. v. Bell, 456 U.S. 512, 514-15, 102 S.Ct. 1912, 1914-15, 72 L.Ed.2d 299 (1982)). “While a private right of action for damages exists under Title IX, Cannon, 441. U.S. at 688-89, 99 S.Ct. at 1953, Franklin, 503 U.S. at 75, 112 S.Ct. at 1037-38, the fact that administrative enforcement is directed at the institution that receives federal funds’ suggests that the private right of action is similarly confined to actions against the institution.” Petaluma City, 830 F.Supp. at 1577, reconsidered in part, 949 F.Supp. 1415. The 1986 Amendment to Title IX further supports. the conclusion that no private right of action exists against individuals, because that amendment abrogated Eleventh Amendment immunity in this limited respect and allowed remedies “to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.” Petaluma City, 830 F.Supp. at 1577 (quoting 42 U.S.C. § 2000d-7(a)(2) (emphasis added)). Because neither Lloyd Bodie, the principal of Southport High, nor Larry Hensley-Marshand, the assistant principal ■ of Southport; ■ individually, is a grant recipient under' Title IX, Smith’s Title IX claim against them cannot stand.

B. Official Capacity

Whether the claims against Bodie and HensleyMarshand, officially, also fail is a more difficult question. It requires us to determine whether a principal or an assistant principal constitutes a grant recipient. Title IX prohibits discrimination in a “program or activity.” Section 1687 of Title IX defines “program or activity” to “mean all of the operations of — (B) a local educational agency (as defined in § 8801 of this title), system of vocational education, or other school systems,” 20 U.S.C. § 1687, and § 8801 in turn defines “a local education agency” as:

(A) a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, . township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools.

(B) The term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school.

Because § 8801 directs us to state law to determine the public authority within the school system, we look to Indiana law to determine whether a school district, school board, principal or assistant principal has administrative control over Southport High. Indiana law provides that

[i]t shall be the duty of the metropolitan school district to conduct the educational activities of all the schools in said district in harmony with state law and in general conformity with the laws of the state of Indiana with reference to public education. The control and administration of the schools of the metropolitan school district shall be vested in a metropolitan board of education whose composition, duties, manner of election, and powers are herein prescribed.

Ind.Code § 20-4-8-13. Indiana law further provides that it is “the duty of the board to act upon the recommendations of the metropolitan superintendent of schools and to make all other such decisions and perform all other such duties as fall within the general framework of the laws of the state.” Ind. Code. § 20-4-8-19. Thus, under Indiana law, the school board and school district have administrative control over educational “programs or activities.” Cf. Partee v. Metropolitan Sch. Dist. of Wash. Tp., 954 F.2d 454, 456 (7th Cir.1992) (“Indiana law provides that school boards ... have the authority to ‘prepare, make, enforce, amend, or repeal rules, regulations, and procedures for the government and management of the ... school corporation, its agents, employees and pupils ....’” (citing Ind.Code § 20-5-2-2(i) (1991)).

On the other hand, Indiana law does not provide principals and assistant principals with administrative control over educational “programs or activities.” Indiana law defines a principal to mean “an administrator in a public school located in Indiana.” Ind. Code § 20-1-1.6-3. It gives a principal the authority to “take any action concerning his school or any school activity within his jurisdiction which is reasonably necessary to carry out or prevent interference with an educational function or school purposes.” Ind. Code § 20-8.1-5.1-5. While a principal has some authority over the activities within his school, the above statutes place institutional control over “program or activities” with the school district and school board. Indiana law also does not give assistant principals administrative control over educational programs or activities; absent is any administrative authority or control over the school itself. Thus neither a principal nor an assistant principal can be considered a grant recipient. Accordingly, Smith’s Title IX claim against Bodie and Hensley-Marshand, in their official capacities, must also fail.

II. Sexual Harassment

Smith’s Title IX claim against the School Board and School District remains. Her claim alleges discrimination on the basis of sex, premised on alleged sexual harassment by Rager. Smith does not allege sexual harassment of the quid pro quo nature; rather her claims are in the nature of a hostile environment claim.

In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992), the Supreme Court stated that “Title IX places on [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 discrimínateos] on the basis of sex.’ We believe the same rule should apply when a teacher sexually harasses and abuses a student.” Id. (quoting Meritor, 477 U.S. at 64, 106 S.Ct. at 2404). This language implies that Title IX’s prohibition of discrimination “on the basis of sex” includes sexual harassment by a teacher of a student. The Tenth Circuit in Seamons v. Snow inferred as much when citing Franklin for the proposition that “Title IX does protect against sexual harassment hostile educational environment.” Seamons v. Snow, 84 F.3d 1226, 1232 n. 7 (10th Cir.1996). In Rowinsky, the court also assumed the same, noting that “sexual harassment by a teacher falls within the framework of Meritor....” 80 F.3d at 1011 n. 11. And later in Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 396 (5th Cir.1996), the Fifth Circuit noted that “[f]or purposes of this appeal, we assume that discrimination ‘on the basis 'of sex’ includes sexual abuse of a student by a teacher.” Likewise, implicit in the Fifth Circuit’s decision in Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.1997), is that sexual harassment constitutes sex discrimination under Title IX. Similarly, in Murray v. New York University College of Dentistry, 57 F.3d 243, 248-49 (2d Cir.1995), the court assumed that sexual harassment of a student by a teacher constituted discrimination “on the basis of sex.” In Kinman v. Omaha Pub. Sch. Dist, 94 F.3d 463, 469 (8th Cir.1996), the Eighth Circuit remanded for trial a student’s Title IX claim based on a teacher’s hostile environment sexual harassment of a student, and in doing so set forth elements for a prima facie case of hostile environment sexual harassment under Title IX. Other Title IX cases involving employees, rather than students, also have held that discrimination “on the basis of sex” includes discriminatory sexual harassment. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988) (holding that an educational institution may be liable under Title IX for hostile environment sexual harassment). In Doe v. Claiborne County, 103 F.3d 495, 513 (6th Cir.1996), the Sixth Circuit held “the ‘discrimination’ prohibition of Title IX encompasses the sexual harassment of a student by a teacher.” Based upon these precedents, and our agreement with them, we hold that a teacher’s sexual harassment of a student constitutes discrimination “on the basis of sex” for purposes of Title IX.

III. Standard for Institutional Liability

With this conclusion that Rager’s treatment of Smith constitutes sex discrimination under Title IX, the next and even more difficult question is: what standard governs institutional liability of a school district for a teacher’s sexual harassment of a student? This is an issue of first impression in this circuit.

A. Agency Principles

Smith claims that the School Board and School District, who are the grant recipients, are liable under Title IX because Rager was an employee of the recipients, and his actions are imputed to the grant recipients. Smith then proposes two alternative standards for imputing Rager’s actions to the School Board or School District, one based on Title VII’s “knew or should have known” standard, and the other based on common law agency principles, -specifically § 219 of the Restatement (Second) of Agency:

(2) A master is not subject to liability for the torts of his servant acting outside the scope of their employment, unless:

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

As just noted, Smith proposes two alternative standards: one based on Title VII and one based on common law agency principles. While “[cjourts sometimes conflate these theories,” there is a difference — § 219 of the Restatement is a pure agency theory, while Title VU’s “knew or should, have known” standard is an agency-like theory. Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 653 (5th Cir.1997). In fact, the “knew or should have known” standard is really just a negligence theory. Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464-65 (7th Cir.1990). While courts often conflate these theories, “[i]t is helpful to distinguish, pure agency theories from agency-like theories that rely on Title VII’s liability scheme,” because “ ‘common-law [agency] principles may not be transferable in all their particulars to Title VII.’ ” Rosa H., 106 F.3d at 653 (quoting Meritor, 477 U.S. at 72, 106 S.Ct. at 2408). Nevertheless, because Smith’s arguments for adopting Title VII’s “knew or should have known” standard, and the standard set forth in § 219 of the Restatement, both rely on the premise that agency principles, pure or in part, apply in Title IX cases, we begin by considering whether agency principles (in any form) should govern institutional liability.

In proposing that the School Board and School District should be hable for Rager’s actions based on agency principles, Smith relies extensively on Title VII case law in arguing that “[b]ecause Title VII prohibits the identical conduct proscribed by Title IX, Title VII is the most appropriate guide to follow in defining Title IX’s substantive liability standards.” She claims that the Supreme Court adopted this approach in Franklin by stating “sexual harassment by a teacher falls within the framework of Meritor because a teacher is an employee of the grant recipient.”

Initially, we note that Franklin did not consider, much less hold, whether the “knew or should have known” standard of Title VII or agency principles in general should apply in Title IX cases; the Franklin decision did not address, the standard for institutional liability under Title IX. Although the Court drew on its Title VII decision.in Meritor to conclude that sexual harassment is intentional discrimination, it made no reference to Mentor’s (or ány other Title VII case’s) discussion on the standard for institutional liability. Nor did it have to, because in Franklin the school defendants knew of the teacher’s alleged harassment and instead of acting to stop it, dissuaded the plaintiff from pressing charges. Thus, institutional liabili-' ty rested on the institution’s actions, and the Supreme Court was not faced with creating a standard for institutional liability based on a teacher’s actions.

Case law since Franklin also has recognized- that Franklin- left unanswered the question of whether Title VII or agency principles should apply to a Title IX case. See Rosa H., 106 F.3d at 655 (“Franklin did not establish any sweeping parallel between Title IX and Title VII.”); Floyd v. Waiters, 831 F.Supp. 867, 876 (M.D.Ga.1993) (noting that Franklin did not hold the school district liable for the teacher’s actions; rather the defendant school district in Franklin was aware of the sexual harassment against one of its students and did nothing to stop it). Kadiki v. Virginia Comm. Univ., 892 F.Supp. 746, 749 (E.D.Va.1995) (noting that the Supreme Court in Franklin did not address whether Title IX actions are governed by Title VII standards); Nelson v. Almont Comm. Sck, 931 F.Supp. 1345, 1354 (E.D.Mich.1996) (noting that “because the only issue before the Supreme Court in Franklin was whether compensatory damages were available as a remedy for intentional discrimination under Title IX, the Court did not reach the issue of the standard by which the liability of a school district is to be determined----”). “In fact, at least one commentator has surmised that the Supreme Court’s failure to address this issue in the Franklin case will ‘lead to great confusion in the lower courts.’ ” Hastings v. Hancock, 842 F.Supp. 1315, 1318 (D.Kan.1993) (citing Joanne Liebman Matson, Civil Rights — Sex Discrimination in Education-Compensatory Damages Available in a Title IX Sexual Harassment Claim, 15 U.Ark. Little Rock L.J. 271, 296 (1993)). Franklin left open the question of whether Title VII’s “knew or should have known” standard or agency principles govern a Title IX action.

Smith is correct that Title VII and Title IX both prohibit sex discrimination, which includes discriminatory sexual harassment. That is the significance of Franklin’s reference to Meritor. Franklin, 503 U.S. at 75, 112 S.Ct. at 1037 (“Title IX places on [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^] on the basis of sex.’ ” (quoting Meritor, 477 U.S. at 64, 106 S.Ct. at 2404)). Therefore, it is helpful to look to Title VII to determine whether the alleged sexual harassment is severe and pervasive enough to constitute illegal discrimination on the basis of sex for purposes of Title IX. However, “Franklin’s single citation to Meritor Savings to support the Court’s conclusion that sexual harassment is sex discrimination does not by itself justify the importation of other aspects of Title VII law into the Title IX context.” Rosa H., 106 F.3d at 656.

Moreover, while Title VII and Title IX both prohibit sexual harassment as a form of sex discrimination, the statutes differ as to who is prohibited from engaging in that conduct. Title IX prohibits recipients of funds for a “program or activity” from discriminating on the basis of sex, while Title VII prohibits employers from discriminating on the basis of sex. Title VII, however, goes even further — it defines employers to include “any agent of such a person.” 42 U.S.C, § 2000e(b). “In Title IX, in contrast. Congress defined ‘program or activity’ to mean, among other things, ‘operations of ... a school system.’ This definition does hot include agents of such an entity.” Floyd, 831 F.Supp. at 876.

Smith ignores this important distinction. But this void is significant, especially in light of the development of the “knew or should have known” standard and agency principles under Title VII. In Meritor, while the Court had not yet definitively set out the “knew or should, have known” standard, it concluded that lower courts should look to agency principles to .determine whether an employer is liable for sexual harassment of an employee by another employee. The Supreme Court reasoned in Meritor that Congress wanted courts to look at agency principles because Congress explicitly defined “employer” to include any “agent”- of an employer. Meritor, 477 U.S. at 72, 106 S.Ct. at 2408. Based on Meritor's directive to look to agency principles, this court adopted the “knew or should have known” standard for liability under Ti-tie VII. Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422 (7th Cir.1986); North v. Madison Area Ass’n for Retarded Citizens-Developmental, 844 F.2d 401, 407 (7th Cir.1988).

Similarly, the “knew or should have known” standard has been applied in suits under the ADA and the ADEA because those statutes define employer to include “any agent of such a person.” In Equal Employment Opportunity Commission v. AIC Security Investigations, Limited, 55 F.3d 1276, 1281 (7th Cir.1995), we explained that “the actual reason for the ‘and any agent’ language in the definition of ‘employer’ was to ensure that courts would impose respondeat superior liability upon employers for the acts of their agent.” In Williams v. Banning, 72 F.3d 552, 553 (7th Cir.1995), we stated that in AIC, “we held that the ADA’s definition of ‘employer’ which (like Title VII) includes an employer’s agents, is simply a statutory expression of traditional respondeat superior liability....” Or as the Fourth Circuit put it, the definition of employer to include any agent of such a person is an “unremarkable expression of respondeat superior-that discriminatory personnel actions taken by an employer’s agent may create liability for the employer.” Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994). Thus, the reason the Supreme Court in Meritor applied agency principles to Title VII, and the reason other courts have applied agency principles in the context of ADA and ADEA cases, is because the statutes at issue explicitly defined an employer to include agents of the employer, evidencing Congress’ intent to hold employers liable vicariously.

Title IX lacks any similar statutory basis for applying agency principles. The language of Title IX does not define a program or activity to include employees working for that program or activity. In fact, it does just the opposite — it defines “program or activity” to include only those who have administrative control of the school. A teacher has no such control. See supra, at 1020-21. Thus, no basis exists under the statutory language to hold grant recipients liable based on agency principles. See Rosa H, 106 F.3d at 654 (refusing to apply agency principles to Title IX because Title IX does not define “program or activity” to include agents of such an entity); Floyd, 831 F.Supp. at 876 (accord); Howard, 876 F.Supp. at 973-74 (accord).

In response, Smith cites numerous cases which held, stated- in dicta, or implied that an educational institution could be liable under Title IX based on agency principles. For instance, in Rowinsky, 80 F.3d at 1011 n. 11, the Fifth Circuit assumed that a recipient of federal education funds could be held liable for sex discrimination when an agent was the perpetrator: “[Sjexual harassment by a teacher falls within the framework of Meritor because a teacher is an employee of the gra