Doe ex rel. Doe v. Petaluma City School District

54 F.3d 1447

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 1995
• Docket: No. 94-15917
• Status: Published

Opinions

Opinion by Chief Judge WALLACE; Dissent by Judge PREGERSON.

WALLACE, Chief Judge:

Homrighouse appeals from a district court order denying him qualified immunity. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. Mendocino Environmental Ctr. v. Mendocino County, 14 F.3d 457, 460 (9th Cir.1994) (denial of qualified immunity appealable on refusal to grant motion to dismiss). We reverse.

I

Beginning in September 1990, Doe reported to Homrighouse, her school counselor, that she was being harassed by some of her male and female peers. The harassment took the form of sexual comments and lewd writings about Doe on the restroom walls. Homrighouse states that he summoned female students in groups to his office to discuss the unacceptable behavior, and advised Doe about how to work out the problems. Doe alleges that Homrighouse also told her that “boys will be boys” and never told Doe’s parents or Doe that the school had a Title IX policy or a Title IX officer, who was responsible for enforcement. It is not contended that Homrighouse sexually harassed Doe. Rather, it is Homrighouse’s inaction that Doe argues violated her rights under Title IX and thereby gives rise to a cause of action under 42 U.S.C. § 1983.

In February 1992, Doe’s mother withdrew her from the school. In January 1993, Doe initiated a Title IX and section 1983 action against both Petaluma City School District and Homrighouse, alleging that the harassment resulted in physical injury, mental health problems, and emotional distress. After partial dismissal, Doe v. Petaluma City School District, 830 F.Supp. 1560 (N.D.Cal.1993), Doe filed a second amended complaint, asserting a Title IX claim against the School only, and a section 1983 claim against Homrighouse only. The School and Homrighouse moved to dismiss the complaint. See Fed. R.Civ.P. 12(b)(6). The district court entered an order holding that the School could be held liable under Title IX, Homrighouse could not be sued as an individual under Title IX but could be sued for Title IX violations through section 1983, and that Homrighouse was not entitled to qualified immunity. Homrighouse appeals from the order denying qualified immunity. He also asks us to exercise what he terms “pendent appellate jurisdiction” and resolve the question of whether he can be sued for a Title IX violation under section 1983, since Title IX seems to create liability on the part of institutions only.

II

We first turn to Homrighouse’s request that we resolve whether he can be sued for a Title IX violation using section 1983. Homrighouse argues that Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), provides us the authority to do so.

The Court in Siegert “granted certiorari in order to clarify the analytical structure under which a claim of qualified immunity should be addressed,” id. at 231, 111 S.Ct. at 1793 (citation omitted), and held that the Court of Appeals for the District of Columbia should “not have assumed, without deciding” whether the right allegedly violated was clearly established. Id. at 232, 111 S.Ct. at 1793. This does not help Homrighouse. Nor have we indicated any interest in broadening our scope of review when evaluating a qualified immunity claim. “On review of a denial of qualified immunity, ‘[w]e have jurisdiction only to decide if defendant’s conduct violated ... clearly established [law].’ ” Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 871 (9th Cir.1992), quoting Todd v. United States, 849 F.2d 365, 368 (9th Cir.1988). As the Fifth Circuit has said: “We are not free ... to shape the boundaries of our jurisdiction through a general equitable balancing of policy factors.” McKee v. City of Rockwall, 877 F.2d 409, 412 (5th Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990); see also Swint v. Chambers County Comm’n, — U.S.—, —, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995) (no “pendent party” appellate jurisdiction on appeal from denial of summary judgment on grounds of qualified immunity): We therefore do not reach this argument.

Ill

A district court’s denial of qualified immunity is reviewed de novo. ActUp!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). Homrighouse, as a public school official, is eligible to assert a qualified immunity defense. See Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975) (extending qualified immunity defense to school board members for liability under section 1983). Because qualified immunity is an affirmative defense from suit, not merely from liability, “[ujnless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).

The standard for determining qualified immunity is objective. “If the law at [the time of the official’s actions] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

It is Doe’s burden to show that the law was clearly established at the time of Hom-righouse’s inaction. “If this burden is met by plaintiff, the defendant then bears the burden of establishing that his actions were reasonable, even though they might have violated the plaintiffs [federally protected rights].” Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992) (Maraziti).

To demonstrate that it was clearly established law at the time of Homrighouse’s inaction that a Title IX claim could be stated for failure to prevent peer sexual harassment, Doe “must show that the particular facts of [her] case support a claim of clearly established right.” Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.1985) (emphasis in original). This does not mean that the “exact factual situation” of Doe’s case must have been previously litigated. Alexander v. Perrill, 916 F.2d 1392, 1397 (9th Cir.1990) (Perrill). “[S]pecifie binding precedent is not required to show that a right is clearly established for qualified immunity purposes.” Maraziti, 953 F.2d at 525, quoting Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). Absent binding precedent, “a court should look at all available decisional law including decisions of state courts, other circuits, and district courts to determine whether the right was clearly established.” Id., quoting Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). Nevertheless, “[t]he contours of the [clearly established] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Thorsted v. Kelly, 858 F.2d 571, 574 (9th Cir.1988), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In this appeal, it is important to bear in mind that it is the right that is alleged to have been violated that must be clearly established. Davis v. Scherer, 468 U.S. 183, 194 & n. 12, 104 S.Ct. 3012, 3019 & n. 12, 82 L.Ed.2d 139 (1984) (Davis).

A.

Doe alleges that Homrighouse had a duty to act under Title IX to prevent peer sexual harassment. She does not allege that Homrighouse sexually harassed her, or that he intended that she be harassed. The claim is that he exhibited what Doe calls “intentional indifference” to her right not to be harassed by fellow students. “We have previously held that under § 1983 the qualified immunity defense is inapplicable whenever an official does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the [rights] deprivation.” Perrill, 916 F.2d at 1396 (emphasis in original) (internal quotations omitted).

To bring this appeal into focus, it is important to identify what is not before us. The question we must decide is not whether Doe had a clearly established right not to be harassed by fellow students. Rather, we must decide whether it was clearly established under Title IX that Homrighouse had a legal duty to do something about the peer harassment.

At the time of Doe’s harassment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, prohibited sex-based harassment in the employment context. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). But this is not a Title VII case. Title IX of the 1972 Education Amendments deals with the prohibition of sex discrimination against students and employees of educational institutions. See 20 U.S.C. §§ 1681-1688. Title IX provides: “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.” Id. § 1681(a).

In 1979, the Supreme Court held that Title IX was enforceable by an individual through an implied private right of action. See Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 660 (1979). In 1992, the Supreme Court ruled that private plaintiffs could seek monetary damages against a school under Title IX for intentional discrimination against a student by a teacher. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

Because Homrighouse’s alleged inaction occurred from the fall of 1990 to February 1992, we must examine the state of Title IX law as it existed between the rulings of Cannon and Franklin. In doing so, we conclude that it was not clearly established, at the time of Homrighouse’s alleged inaction, that he had a duty to prevent peer sexual harassment. No case prior to February 1992 has been cited to us which demonstrates that Doe had a clearly established right to have Homrighouse intervene on her behalf. In fact, this case appears to be the first in which a student has sought money damages for peer harassment from either a school or school official. No case has been cited to us holding that a school counselor has any duty to prevent Doe’s peer sexual harassment, except for the district court’s opinion in this case. But another district judge has subsequently refused to follow it. See Aurelia D. v. Monroe County Bd. of Educ., 862 F.Supp. 363, 367 (M.D.Ga.1994) (holding “no basis” for claim under Title IX for a school’s inaction in face of complaints of student-to-student harassment, and dismissing claim against individual defendants on the basis of qualified immunity).

Thus, the outcome of this case is clear. We must focus on the right Doe alleges was violated. Davis, 468 U.S. at 194 & n. 12, 104 S.Ct. at 3019 & n. 12. That right is that pursuant to Title IX, Homrighouse was required to prevent harassment by Doe’s peers. As of February 1992, there was no such clearly established right. It is only when we disobey Davis and refuse to focus on the right Doe alleges was violated that contention may arise.¹

B.

We have held that the right to be free of sexual abuse in the workplace under Title VII was clearly established during the period of Doe’s harassment. See Bator v. Hawaii, 39 F.3d 1021, 1027-29 (9th Cir.1994). But that, of course, is not a Title IX school case. In Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.) (en banc), cert. denied, — U.S. —, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994), the Fifth Circuit concluded that as of 1987, a school principal and superintendent had a duty to prevent teacher-to-minor student sexual molestation. Id. at 455. But Taylor is different from the situation here. Not only did Taylor involve a teacher who abused a student, but Taylor involved a section 1983 claim brought to vindicate the plaintiffs rights under the Fourteenth Amendment, not under Title IX. The abuse in Taylor was physical, giving rise to a substantive due process claim for the violation of the right to bodily integrity. That difference is crucial, because the contours of an individual’s substantive due process right to bodily integrity were much clearer in 1987 than the Title IX right allegedly violated in this case. Again, Doe must show that the right Homrighouse is alleged to have violated was clearly established. Davis, 468 U.S. at 194 & n. 12, 104 S.Ct. at 3019 & n. 12.

Doe’s claim is also not supported by Clyde K. v. Puyallup School District, 35 F.3d 1396 (9th Cir.1994), where we held that a school did not violate the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1484a, by removing a student with Tourette’s Syndrome from the classroom. We did make reference to Ryan K.’s sexually-explicit remarks, and said in dictum that “public officials have an especially compelling duty not to tolerate [such remarks] in the classrooms and hallways of our schools.” Id. at 1401. The opinion, however, was filed two years after the relevant conduct in the appeal before us.

Doe points to a letter from the Office for Civil Rights (OCR) that had allegedly notified the school district that, according to OCR’s interpretation of Title IX, the school district had a duty to prevent the kind of peer harassment that occurred against Doe. However, an opinion letter by the OCR does not clearly establish that Title IX created a duty on the part of Homrighouse to act.

In discussing how a plaintiff may overcome a claim of qualified immunity, the Supreme Court has stated that “[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.” Davis, 468 U.S. at 194, 104 S.Ct. at 3019. For the same reason, “officials sued for violations of rights conferred by a statute or regulation ... do not forfeit their immunity by violating some other statute or regulation. Rather, these officials become liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages.” Id. at 194 n. 12, 104 S.Ct. at 3019 & n. 12 (emphasis in original). The objective reasonableness of an official’s actions is measured by reference to clearly established law. No other “circumstances” are relevant. Id. at 191, 104 S.Ct. at 3017.

In Elder v. Holloway, — U.S. —, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994), the Supreme Court explained that even though the clearly established right must arise from the same law upon which the claim for relief is based, a court may look to any case law to determine if such a right exists. Id. at —, 114 S.Ct. at 1023. A reviewing court “should therefore use its ‘full knowledge of its own [and other relevant] precedents.’ ” Id. (emphasis added), quoting Davis, 468 U.S. at 192 n. 9, 104 S.Ct. at 3018 n. 9.

The OCR letter in this case neither creates the source of the right sued upon by Doe, nor is it a relevant “precedent” which can clearly establish an official’s duty to act. It is true that an obligation to act might arise from something other than decisional law, such as a regulation or policy that an official is legally bound to follow. See Perrill, 916 F.2d at 1398 (prison official’s duties clearly established through Bureau of Prisons regulations). But no such regulations exist here that are legally binding on Homrighouse. An opinion letter by the OCR is simply not enough.

C.

If Homrighouse engaged in the same conduct today, he might not be entitled to qualified immunity. We would then be required to consider the Supreme Court’s recent Franklin decision. It might be that today a Title VII analogy likening Homrighouse to an employer and Doe to an employee might provide an argument to consider in a similar Title IX case. However, those arguments are not properly before us. With what is properly before us, we cannot say that Hom-righouse’s duty to act under Title IX was clearly established at the time of his inaction. See Davis, 468 U.S. at 194-95, 104 S.Ct. at 3019-20. It might turn out that Title VII cases decided subsequently to the events in this case could be used by analogy to provide the basis for creating a duty to act under Title IX. We express no opinion as to that question. What we do conclude, however, is that it is not reasonable to charge Homrig-house at the time in question with the kind of knowledge, foresight, or even ingenuity required to anticipate that Title VII analogies might be used in this fashion to hold him individually liable to Doe under Title IX. “The qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages.” Id. at 195, 104 S.Ct. at 3019.

REVERSED.

1 . It is therefore beside the point whether, as the dissent argues, Doe had a right to be free from peer-to-peer sexual harassment. The question before us is whether Homrighouse had a duty to act to prevent such harassment, not whether the harassment itself was permitted under Title IX.