dissenting:

The majority opinion concludes that Hom-righouse, a school counselor, is entitled to qualified immunity because when he failed to *1453 stop students from sexually harassing Jane Doe, Title IX did not clearly establish a school official’s duty to stop peer-to-peer sexual harassment. In reaching this conclusion, the majority opinion states: “[N]o case has been cited ... holding that a school counsel- or has any duty to prevent Doe’s peer sexual harassment_” 1 By requiring strict factual similarity between pre-existing case law and the present case, the majority improperly dismisses case law that clearly indicated a school official’s duty to stop peer-to-peer sexual harassment. Accordingly, I respectfully dissent.

The majority opinion does acknowledge that “specific binding precedent is not required to show that a right is clearly established for qualified immunity purposes.” Yet, in summarily brushing aside relevant ease law that clearly established a school official’s duty’to stop teachers from sexually harassing their students, and an employer’s duty to stop employees from sexually harassing their co-workers, the majority opinion in effect conditions the denial of qualified immunity on the existence of a case that factually is on all-fours with the action in question.

In Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987), the Supreme Court pointed out that the right the official is alleged to have violated must have been “clearly established” in a “particularized” sense. The Court cautioned, however, that “this is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id.

We made clear in Wood v. Ostrander, 879 F.2d 583, 593 (9th Cir.1989), cert. denied, 498 U.S. 938 , 111 S.Ct. 341 , 112 L.Ed.2d 305 (1990), that “the qualified immunity regime of clearly established law should not be held to allow § 1983 defendants to interpose law-yerly distinctions that defy common sense in order to distinguish away clearly established law.” See also Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir.1985) (“Certainly ... [§ 1983 plaintiffs] need not always produce binding precedent.... There may be cases of conduct so egregious that any reasonable person would have recognized a constitutional violation.”).

Thus, the fact that in 1990, no court had yet held a school official liable for failing to stop student-to-student sexual harassment should not automatically immunize Homrighouse from suit. In Bator v. State of Hawaii, 39 F.3d 1021, 1027-28 (9th Cir.1994), we held that supervisors who failed to stop the plaintiffs co-workers from sexually harassing her were not entitled to qualified immunity. We concluded that the constitutional and statutory right to be free from sexual harassment, including harassment perpetrated by one’s peers, was clearly established in 1988, even though we did not explicitly hold employers liable for the harassment perpetrated by a victim’s co-worker until 1991, in Ellison v. Brady, 924 F.2d 872 (9th Cir.1991).

A. PRE-EXISTING CASE LAW

Applying the same analysis we employed in Bator to the instant case, I believe that the unlawfulness of student-to-student sexual harassment would have been apparent to a reasonable school official. To determine whether a right is “clearly established,” we must start with binding precedent from our court and from the Supreme Court. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 490 (9th Cir.1986). In the absence of binding precedent, we must look to decisions of other courts, assessing in the process the likelihood that our court or the Supreme Court would adopt the analysis of the other courts. Id.

In 1990, when Jane Doe first complained to Homrighouse about the incidents of sexual harassment, several cases were on the books which clearly indicated a student’s right to be free from peer-to-peer sexual harassment under the due process and equal protection clauses of the Fourteenth Amendment, and *1454 under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-1688 .

First, courts had established the duty of school officials to prevent teachers from sexually harassing students. After the Supreme Court’s ruling in Cannon v. University of Chicago, 441 U.S. 677 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979), that an implied private right of action existed under Title IX, courts have recognized the existence of a cause of action under Title IX and the Fourteenth Amendment for quid pro quo 2 and hostile environment sexual harassment.

In Alexander v. Yale, 459 F.Supp. 1, 4 (D.Conn.1977), aff'd, 631 F.2d 178 (2d Cir.1980), the Second Circuit affirmed the district court’s ruling that professors who link a student’s academic advancement to submission to sexual pressures violate laws against sex discrimination in education. In Moire v. Temple University School of Medicine, 613 F.Supp. 1360, 1367 (E.D.Pa.1985), aff'd, 800 F.2d 1136 (3d Cir.1986), the Third Circuit affirmed the district court’s ruling that a medical student subjected to a sexually hostile environment created by her professor has an actionable claim under Title IX.

Second, courts had also established the right to be free from sexual harassment perpetrated by one’s peers in the workplace. As noted above, in Ellison v. Brady, 924 F.2d at 882 , we held that an employer must take remedial action “reasonably calculated to end” co-worker harassment. The majority opinion abruptly disposes of all relevant Title VII cases by pointing out, without further discussion, that Title VII and Title IX are different statutes.

However, notwithstanding this distinction, courts regularly looked to Title VII cases as guides in interpreting Title IX. For example, in Mabry v. State Bd. of Community Colleges, 813 F.2d 311 , 316 n. 6 (10th Cir.), cert. denied, 484 U.S. 849 , 108 S.Ct. 148 , 98 L.Ed.2d 104 (1987), the Tenth Circuit concluded that “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.”

The Equal Employment Opportunity Commission issued guidelines instructing agencies to “consider Title VII case law and EEOC Guidelines ... in determining whether a recipient of Federal financial assistance [under Title IX] has engaged in an unlawful employment practice.” 29 C.F.R. § 1691.4 (1994). The legislative history of Title IX also reflected this approach. The House Report states: “Title VII ... specifically excludes educational institutions from its terms. [Title IX] would remove that exemption and bring those in education under the equal employment provision.” 1972 U.S.C.C.A.N. 2462, 2512. Thus, it was well settled in 1990 that the standards for sexual harassment under Title VII apply to employment discrimination claims under Title IX.

In Lipsett v. University of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988), the First Circuit extended the Title VII standard to a mixed employment-educational context. The plaintiff, a medical student, was an employee as well as a student of the residency program. The plaintiff was sexually harassed by her supervisors and fellow students. The court held that the school officials’ failure to stop the harassment could amount to deliberate indifference to the student’s right to be free from discrimination under Title IX and the equal protection clause.

Lipsett is noteworthy not only for its extension of the Title VII definition of sexual harassment to an educational context (albeit one that also was employment-related), but also for its holding that school officials may be liable for failing to stop sexual harassment perpetrated by student-employees’ peers. See also Pagano by Pagano v. Massapequa Public Schools, 714 F.Supp. 641, 643 (E.D.N.Y.1989) (school officials’ failure to prevent continuing physical and verbal abuse by other students stated a claim under § 1983).

In light of the cases discussed above, one can reasonably argue that, at the time of Homrighouse’s alleged inaction, the Ninth Circuit or the Supreme Court would likely have followed the First Circuit’s extension of *1455 Title VII standards to Title IX educational eases. In fact, on February 26, 1992, the Supreme Court decided Franklin v. Gwinnett County Public Schools, 503 U.S. 60 , 112 S.Ct. 1028 , 117 L.Ed.2d 208 (1992), just two days before Jane Doe’s parents, who were frustrated with Homrighouse’s continuing inaction, pulled her out of Kenilworth Junior High School. In Franklin , the Supreme Court extended the Title VII sexual harassment standards to Title IX educational eases:

Id. at 75 , 112 S.Ct. at 1037 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 , 106 S.Ct. 2399, 2404 , 91 L.Ed.2d 49 (1986)). The Court held that a school may be liable to a student for monetary damages for sexual harassment perpetrated by a teacher. Id.

Concededly, Franklin cannot serve as evidence of existing law that indicated the unlawfulness of peer-to-peer sexual harassment because it was decided after Homrighouse’s alleged inaction. Nonetheless, Franklin demonstrates that the Supreme Court would have followed existing case law that extended Title VII sexual harassment standards to Title IX educational eases.

In short, I believe that a reasonable official would have concluded that the sexual harassment standard we established in Ellison v. Brady, supra, would most likely apply to Title IX educational cases. Just as an employer must take remedial action “reasonably calculated to end” co-worker harassment, 924 F.2d at 882 , so too must school officials take remedial action reasonably calculated to end peer harassment. 3

B. OCR’S LETTER OF FINDING

The conclusion that student-to-student sexual harassment, like co-worker sexual harassment, violates the law should have been particularly apparent to someone like Homrig-house. The Office for Civil Rights of the U.S. Department of Education (“OCR”) explicitly notified the Petaluma City School District through a Letter of Finding that the failure to stop the very type of harassment to which Jane was subjected violates Title IX. It is undisputed that Homrighouse received a copy of this letter, read it, and placed it in a file marked “Title IX” in his office.

The Letter of Finding, which was dated May 5, 1989, stated that the district was in violation of Title IX for failing to take prompt and effective action to stop the sexual harassment of another student. The other student was verbally harassed by fellow students at Kenilworth Junior High School, who yelled “Moo, Moo” at her and made blunt references to the size of her breasts. Kenil-worth is the same junior high school that Jane Doe attended.

OCR found that (1) the taunts directed at the other student constituted sexual harassment because (a) they were sexual in nature and (b) they interfered with her ability to benefit from her education and created an intimidating, hostile, and offensive environment; 4 (2) several teachers knew about the harassment; (3) the principal’s response, which included verbally reprimanding the students and assigning a custodian to watch for the behavior on one day, was insufficient to address the problem; and (4) a prior victim of sexual harassment at Kenilworth managed to escape the harassment only by transferring out of the school. The Letter of Finding explicitly specified that “[a] district which is aware that its students are being *1456 subjected to sexual harassment has a duty under Title IX to take prompt and effective action to stop it.”

Jane suffered virtually identical harassment. The epithets such as “slut” and “ho” (slang for whore), and the pervasive taunts of her having a “hot dog” in her pants, were clearly of a sexual nature. Jane and her parents informed Homrighouse numerous times that the harassment severely interfered with her education. Yet, despite the OCR notice that the failure to address adequately this type of problem violates Title IX, Homrighouse failed to take the requisite action.

Instead, for several months, Homrighouse refused to take any action at all, telling Jane that “boys will be boys” and that “girls cannot sexually harass other girls.” After one of many incidents, Homrighouse finally called the offenders into his office and warned them. The warning did not stop the harassment. Homrighouse never reported the incidents to the school’s Title IX officer, nor did he ever tell Jane or her parents that the school had a Title IX policy and a Title IX officer who was responsible for enforcing the policy. Homrighouse declared that he did not inform the Title IX officer of the harassment because he “didn’t feel it was important.”

The majority asserts that an opinion letter by OCR “is simply not enough” to bind Hom-righouse because it “neither creates the source of the right sued upon by Doe, nor is it a relevant ‘precedent.’” The majority does note, though, that an obligation to act might arise from something other than deci-sional law, such as a regulation or policy that an official is legally bound to follow. See Alexander v. Perrill, 916 F.2d at 1398.

Although OCR’s Letter of Finding was not legally binding on school officials in general, it specifically bound Kenilworth’s officials, including Homrighouse, to its terms. OCR is the entity charged with enforcing and effectuating Title IX. 20 U.S.C. § 1682 authorizes the U.S. Department of Education to investigate reported violations of Title IX and to initiate administrative proceedings to enforce compliance if voluntary compliance cannot be secured. Refusals to comply can be sanctioned with a termination of federal aid. Section 1682 also authorizes the Secretary of the Department of Education to promulgate rules, regulations, or orders of general applicability to effectuate Title IX.

A Letter of Finding notifies the institution in question whether it is in violation of applicable civil rights statutes, and outlines remedial steps that must be taken to preserve federal funding of its programs. See Notice of Final Annual Operating Plan for Fiscal Year 1985, Department of Education, Office for Civil Rights, 49 Fed.Reg. 48,599 (December 13, 1984) (“OCR reviews with recipients its findings on each issue raised by a complaint or compliance review and ... the resulting LOF cites the basis for the violation finding and the remedy adopted by the recipient.”).

Moreover, even though agency interpretations of law do not have the binding force of law, it is well established that “an agency’s construction of its own regulations is entitled to substantial deference.” Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150 , 111 S.Ct. 1171, 1175 , 113 L.Ed.2d 117 (1991); Lyng v. Payne, 476 U.S. 926, 939 , 106 S.Ct. 2333, 2341-42 , 90 L.Ed.2d 921 (1986) (same); Cohen v. Brown University, 809 F.Supp. 978, 988 (D.R.I.1992), aff'd, 991 F.2d 888 (1st Cir.1993) (“[OCR’s] Policy Interpretation and Investigator’s Manual ... do not carry the force of law_ Nevertheless ... [they] are important guides in unraveling the requirements of the athletic regulation [under Title IX].”).

In Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 , 104 S.Ct. 2778, 2782 , 81 L.Ed.2d 694 (1984), the Supreme Court held that absent Congressional intent to the contrary, an agency’s interpretation of the statute which it administers will be upheld if it is based on a “permissible construction” of the statute. A court need not conclude that the agency construction was the only one it permissibly could have adopted or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11.

Title IX 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 *1457 to discrimination under any educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681 . OCR stated the following conclusion in its May 5, 1989 Letter of Finding to the Petaluma City School District: “Harassment of a student because of his or her sex may have the effect of depriving that student of benefits or of subjecting them to different treatment on the basis of sex.” This conclusion clearly constitutes a permissible interpretation of Title IX.

Because Homrighouse closed his eyes to the clear indications of case law, and because Homrighouse ignored OCR’s requirement that he take adequate steps to stop the sexual harassment suffered by Jane Doe, I submit that he should not enjoy the benefit of qualified immunity. We said in Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 870 (9th Cir.1992), “[t]he doctrine [of qualified immunity] was created to protect good faith exercises of official discretion, not to shield willful or knowing lawless action taken under color of official authority.”

. Although the majority opinion only decided whether a school official's duty to stop peer sexual harassment was clearly established under Title IX, Jane Doe claims that that duty arises under Tide IX and the Fourteenth Amendment. See Second Amended Complaint at 13-14; District Court’s Order at 7 — 8.

. Quid, pro quo sexual harassment is where the harasser demands sexual favors from the victim in exchange for a benefit.

. Ellison also contained broad language on the scope of an employer’s duty to alleviate a hostile work environment created by one's peers. The decision should have alerted any reasonable official of the imperative to act upon similar kinds of complaints, such as student-to-student harassment: “[T]he reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.” 924 F.2d at 880 (emphasis added). “Employers should impose sufficient penalties to assure a workplace free from sexual harassment. ... In evaluating the adequacy of the remedy, the court may also take into account the remedy's ability to persuade potential harassers to refrain from the unlawful conduct.” Id. at 882 .

. The letter noted that harassment which is directed at a student because of his or her sex also constitutes sexual harassment.