Janet Doe v. Oyster Riv. School Dist.
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Opinion
Janet Doe v . Oyster Riv. School Dist. CV-95-402-SD 08/25/97 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Janet Doe b/m/n/f the Mother of Janet Doe; Jane Doe b/m/n/f the Mother of Jane Doe; Jane Doe's Mother, individually
v. Civil N o . 95-402-SD
Oyster River Cooperative School District
O R D E R
This civil rights action raises the question of the nature
of the liability of a public school district under federal law
when one of its students sexually harasses other students. The
question is interesting not only for its relative novelty (most
circuit courts, including the First Circuit, have not directly
addressed the issue), but also because it tests the doctrine of
institutional liability under the Civil Rights Acts, a subject
which has recently captured much attention.
The plaintiffs include two former students of the Oyster
River Middle School, Jane and Janet, and Jane’s mother. They
assert claims under Title IX of the Education Amendments Act of
1972, 20 U.S.C. § 1681 (Title I X ) ; 42 U.S.C. § 1983; and state
law against the Oyster River Cooperative School District.
Before the court are defendant’s motions to dismiss and for
summary judgment (documents 1 5 , 1 6 , respectively) and plaintiffs’ motion to amend the pleadings (document 1 9 ) . All three motions
have been objected t o .
Background
Beginning in April 1993, Jane, Janet, 1 and other female
seventh-grade students allegedly were sexually harassed on a
regular basis by a male fellow student (John) at the Oyster River
Middle School in Durham, New Hampshire. At the time, John's
alleged behavior included exposing his genitalia, touching the
girls on the leg, waist, or breast, and making very obscene
comments. He also allegedly drew sexually explicit pictures on
notebooks and school property.
On June 1 7 , during the last week of school, Janet and some
other girls went to the office of the vice principal, Steven
LeClair, to complain about John’s continued harassment. See
Plaintiffs' Exhibits B , C . The girls felt they needed to come in
person because LeClair had previously taken no action after they
had sent him an unsigned letter in May complaining about sexual
harassment.
As LeClair was otherwise occupied, the girls met with a
guidance counselor, Carolyn Puffer. Puffer took notes
cataloguing John’s behaviors and accepted one of John’s drawings
from the girls. See Plaintiffs' Exhibits B , C . Puffer gave her
notes and the drawings to LeClair, who mistakenly believed that
the young women were primarily complaining about the pictures.
1 The court has adopted the pseudonyms used by the parties. He also mistakenly thought that the girls were only complaining
on behalf of Jane. See LeClair Affidavit at ¶ 6.
At some point that day, Puffer told the girls not to tell
their parents about the harassment because it would only lead to
lawsuits. See Plaintiffs' Exhibit N at 98-99.
On Saturday, June 1 9 , 1993, LeClair contacted Jane's father
and informed him that there was a problem. See Defendant's
Exhibit H at 5 2 . That Monday, LeClair contacted Janet's mother,
but only stated that Janet had reported the harassment on behalf
of someone else and that the situation had been resolved. See
Plaintiffs' Exhibit G at 7 1 .
As a result of a meeting with Jane's father, LeClair agreed
to present three conditions to John’s parents. The conditions
were that John would write a letter of admission which would be
kept sealed by the administration and would be opened in the
upcoming school year only for the purposes of discipline enhancement, that John would apologize in person to Jane, and
that he would seek counseling. See Defendant's Exhibit H at 4 4 ,
52-54, 6 6 , 6 7 ; Plaintiffs' Exhibit F at 7 7 .
LeClair failed to follow up on some of the conditions,
although John did apologize in person to Jane. When Jane's
father telephoned LeClair in mid-August, LeClair stated that he
had not yet received John's letter and that he had not pursued
the matter further. See Plaintiffs' Exhibit E at 1 4 2 . LeClair later left the District's employ to take a position at another
school.
Jane's father then sent a letter to Superintendent John
Powers in a further effort to resolve the situation prior to the
start of the new school year. Powers did not respond or even
acknowledge the letter. At one point, the parents were informed
by someone from the District that it could not inform the
teachers at the school about John’s inappropriate behaviors.
During the late summer, Jane's father filed a complaint
about John's alleged sexual misconduct with the Durham police.
In addition, LeClair received a letter of apology from John and
forwarded it to the school district. See Defendant's Exhibit A
at 1 1 2 .
When the new school year began in September 1993, John was
in Janet's section of classes; however, because of scheduling,
Jane did not have any classes with John. In late September, Janet informed a guidance counselor that she was uncomfortable
being in John's class. See Plaintiff's Exhibit N (Vol. I I I ) , at
33. At the time, Janet had witnessed John using inappropriate
language, although it was not directed at her. See id. at 3 4 .
Later that fall, John began to engage in lewd acts reminiscent of
his behavior the prior year, including touching himself in class.
See id. (Vol. I I ) , at 126. However, Janet did not report it to
the school administration because, based on the school's response
4 to her complaints the prior spring, she believed the school would
do nothing about i t . See id. at 129. She did not know at the
time that John had been required to seek counseling, although she
was aware of John's verbal apology to Jane. Id. She believed
that John had not been disciplined at all. See id.
In October of 1993, Janet's mother informed Janet's teachers
about John's alleged sexual misconduct during the previous
spring. Janet's teachers had not been informed about the
previous complaints. Plaintiffs' Exhibit G at 1 2 0 . Janet's
mother also met many times with the school district's
superintendent during the 1993/1994 school year, requesting that
John be removed from the school or transferred out of her
daughter's section. The school district refused. The
superintendent of the school system wrote at one point that such
action would be "untimely and inappropriate to the welfare and
education of the accused." See Plaintiffs' Exhibit R at 4 . In October 1993 the school district held a training session
on sexual harassment for teachers, students, and parents.
At the end of November 1993 Janet's mother filed a complaint
with the Department of Education's Office for Civil Rights, which
conducted a limited investigation into the matter. OCR
determined that LeClair had not properly responded to either the
unsigned letter or the verbal reports of harassment he received
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Janet Doe v . Oyster Riv. School Dist. CV-95-402-SD 08/25/97 P UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Janet Doe b/m/n/f the Mother of Janet Doe; Jane Doe b/m/n/f the Mother of Jane Doe; Jane Doe's Mother, individually
v. Civil N o . 95-402-SD
Oyster River Cooperative School District
O R D E R
This civil rights action raises the question of the nature
of the liability of a public school district under federal law
when one of its students sexually harasses other students. The
question is interesting not only for its relative novelty (most
circuit courts, including the First Circuit, have not directly
addressed the issue), but also because it tests the doctrine of
institutional liability under the Civil Rights Acts, a subject
which has recently captured much attention.
The plaintiffs include two former students of the Oyster
River Middle School, Jane and Janet, and Jane’s mother. They
assert claims under Title IX of the Education Amendments Act of
1972, 20 U.S.C. § 1681 (Title I X ) ; 42 U.S.C. § 1983; and state
law against the Oyster River Cooperative School District.
Before the court are defendant’s motions to dismiss and for
summary judgment (documents 1 5 , 1 6 , respectively) and plaintiffs’ motion to amend the pleadings (document 1 9 ) . All three motions
have been objected t o .
Background
Beginning in April 1993, Jane, Janet, 1 and other female
seventh-grade students allegedly were sexually harassed on a
regular basis by a male fellow student (John) at the Oyster River
Middle School in Durham, New Hampshire. At the time, John's
alleged behavior included exposing his genitalia, touching the
girls on the leg, waist, or breast, and making very obscene
comments. He also allegedly drew sexually explicit pictures on
notebooks and school property.
On June 1 7 , during the last week of school, Janet and some
other girls went to the office of the vice principal, Steven
LeClair, to complain about John’s continued harassment. See
Plaintiffs' Exhibits B , C . The girls felt they needed to come in
person because LeClair had previously taken no action after they
had sent him an unsigned letter in May complaining about sexual
harassment.
As LeClair was otherwise occupied, the girls met with a
guidance counselor, Carolyn Puffer. Puffer took notes
cataloguing John’s behaviors and accepted one of John’s drawings
from the girls. See Plaintiffs' Exhibits B , C . Puffer gave her
notes and the drawings to LeClair, who mistakenly believed that
the young women were primarily complaining about the pictures.
1 The court has adopted the pseudonyms used by the parties. He also mistakenly thought that the girls were only complaining
on behalf of Jane. See LeClair Affidavit at ¶ 6.
At some point that day, Puffer told the girls not to tell
their parents about the harassment because it would only lead to
lawsuits. See Plaintiffs' Exhibit N at 98-99.
On Saturday, June 1 9 , 1993, LeClair contacted Jane's father
and informed him that there was a problem. See Defendant's
Exhibit H at 5 2 . That Monday, LeClair contacted Janet's mother,
but only stated that Janet had reported the harassment on behalf
of someone else and that the situation had been resolved. See
Plaintiffs' Exhibit G at 7 1 .
As a result of a meeting with Jane's father, LeClair agreed
to present three conditions to John’s parents. The conditions
were that John would write a letter of admission which would be
kept sealed by the administration and would be opened in the
upcoming school year only for the purposes of discipline enhancement, that John would apologize in person to Jane, and
that he would seek counseling. See Defendant's Exhibit H at 4 4 ,
52-54, 6 6 , 6 7 ; Plaintiffs' Exhibit F at 7 7 .
LeClair failed to follow up on some of the conditions,
although John did apologize in person to Jane. When Jane's
father telephoned LeClair in mid-August, LeClair stated that he
had not yet received John's letter and that he had not pursued
the matter further. See Plaintiffs' Exhibit E at 1 4 2 . LeClair later left the District's employ to take a position at another
school.
Jane's father then sent a letter to Superintendent John
Powers in a further effort to resolve the situation prior to the
start of the new school year. Powers did not respond or even
acknowledge the letter. At one point, the parents were informed
by someone from the District that it could not inform the
teachers at the school about John’s inappropriate behaviors.
During the late summer, Jane's father filed a complaint
about John's alleged sexual misconduct with the Durham police.
In addition, LeClair received a letter of apology from John and
forwarded it to the school district. See Defendant's Exhibit A
at 1 1 2 .
When the new school year began in September 1993, John was
in Janet's section of classes; however, because of scheduling,
Jane did not have any classes with John. In late September, Janet informed a guidance counselor that she was uncomfortable
being in John's class. See Plaintiff's Exhibit N (Vol. I I I ) , at
33. At the time, Janet had witnessed John using inappropriate
language, although it was not directed at her. See id. at 3 4 .
Later that fall, John began to engage in lewd acts reminiscent of
his behavior the prior year, including touching himself in class.
See id. (Vol. I I ) , at 126. However, Janet did not report it to
the school administration because, based on the school's response
4 to her complaints the prior spring, she believed the school would
do nothing about i t . See id. at 129. She did not know at the
time that John had been required to seek counseling, although she
was aware of John's verbal apology to Jane. Id. She believed
that John had not been disciplined at all. See id.
In October of 1993, Janet's mother informed Janet's teachers
about John's alleged sexual misconduct during the previous
spring. Janet's teachers had not been informed about the
previous complaints. Plaintiffs' Exhibit G at 1 2 0 . Janet's
mother also met many times with the school district's
superintendent during the 1993/1994 school year, requesting that
John be removed from the school or transferred out of her
daughter's section. The school district refused. The
superintendent of the school system wrote at one point that such
action would be "untimely and inappropriate to the welfare and
education of the accused." See Plaintiffs' Exhibit R at 4 . In October 1993 the school district held a training session
on sexual harassment for teachers, students, and parents.
At the end of November 1993 Janet's mother filed a complaint
with the Department of Education's Office for Civil Rights, which
conducted a limited investigation into the matter. OCR
determined that LeClair had not properly responded to either the
unsigned letter or the verbal reports of harassment he received
in the spring of 1993; however, OCR appeared to find that the
5 school district did take appropriate corrective actions from August 1993 forward. Specifically, OCR found that
[t]he former assistant principal took no action on the letter, and he failed to adequately respond to the verbal reports of sexual harassment because he did not conduct a thorough and objective investigation, did not take immediate action to fully remediate any harm that occurred, and did not take steps reasonably calculated to prevent sexual harassment from recurring. However, since August 1993, the District has implemented a variety of corrective measures to address the incidents which the complainants reported and to educate District administrators, staff, faculty, students, and parents about recognizing and preventing sexual harassment. Also, the District has revised its policy concerning sexual harassment and is currently revising its grievance procedure which addresses allegations of sexual harassment.
Defendant's Exhibit M (letter dated Mar. 1 1 , 1994). On
February 1 6 , 1994, the school board adopted a new policy on
sexual harassment. In March the district signed an agreement for
corrective action with OCR.
Although Jane was not in John's classes in the eighth grade,
she did regularly encounter him in the halls, at recess, and at
lunch. See Plaintiffs' Exhibit X . In October Jane learned from
another student that John had referred to her as a "tuna-fish
smelling cunt." See Plaintiffs' Exhibit M at 7 4 . The assistant
principal, Bette Chamberlain, investigated the matter but could
make no final determination because the students gave differing
versions of the events. See Defendant's Exhibit L at 142-49. As
6 a result, John was not disciplined. Chamberlain stated in
deposition that she observed friction on both sides. Plaintiffs
claim that Chamberlain was never properly trained about how to
discipline students.
After completing eighth grade, Jane left the school district
and attended private schools beginning in the ninth grade. She
left because of the totality of events involving John. See
Plaintiffs' Exhibit M at 5 5 . Janet remained in the school
district.
Discussion
1. Standard of Review
Defendant has filed a motion to dismiss and a motion for
summary judgment. Matters outside the pleadings were relied on
by plaintiffs in both of their objections and by the defendant in
its summary judgment motion. When matters outside the pleadings
are presented and not excluded by the court, a motion to dismiss
may be treated as one for summary judgment, provided all parties
have had the appropriate opportunity to respond. See Friedman v .
Israel Labour Party, 957 F. Supp. 7 0 1 , 705 (E.D. P a . 1997); Rule
1 2 ( b ) , Fed. R. Civ. P.
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 5 6 ( c ) , Fed. R. Civ. P.; Lehman
7 v . Prudential Ins. C o . of Am., 74 F.3d 3 2 3 , 327 (1st Cir. 1996).
The court's function at this stage "is not [ ] to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Stone & Michaud
Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065, 1068
(D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)).
The moving party has the burden of establishing the lack of
a genuine issue of material fact. Finn v . Consolidated Rail
Corp., 782 F.2d 1 3 , 15 (1st Cir. 1986). The court views the
record in the light most favorable to the nonmoving party,
granting him all inferences in his favor. Caputo v . Boston
Edison C o . , 924 F.2d 1 1 , 13 (1st Cir. 1991). To survive summary
judgment, the nonmovant must make a "showing sufficient to
establish the existence of [the] element[s] essential to [his]
case," Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 322-23 (1986), and cannot merely rely on allegations or denials within the
pleadings. LeBlanc v . Great Am. Ins. C o . , 6 F.3d 836, 841 (1st
Cir. 1 9 9 3 ) , cert. denied, 511 U.S. 1018 (1994) (quoting Anderson,
supra, 477 U.S. at 2 5 6 ) .
8 2. The Title IX Claim
a . Are Title VII standards applicable?
The threshold issue raised by the defendant is whether a
school district's failure to correct student-on-student sexual
harassment is the type of discriminatory conduct capable of
supporting a Title IX violation. Defendant argues that although
sexual harassment is a form of recognizable discrimination when
it occurs in the workplace, harassment perpetrated by students,
particularly juveniles, is not a form of discrimination.
Continuing, defendant asserts that the standards applicable to
the adult world of employment are not applicable to situations
involving children or young adults in school.
Title IX of the Education Amendments of 1972, codified at 20
U.S.C. § 1681, et seq., prohibits educational institutions
receiving federal funds from subjecting program participants to
sex-based discrimination. The statute provides: No person in the United States shall, on the basis of sex, be excluded from participation i n , be denied the benefits o f , or be subjected to discrimination under any education program or activity receiving Federal financial assistance, . . . .
20 U.S.C. § 1681(a).
Title IX does not expressly state that sexual harassment can
constitute discrimination under the statute. However, in some
circumstances, courts have looked to Title VII of the Civil
9 Rights Act of 1964, 42 U.S.C. § 2000e, et seq., which prohibits
employment discrimination, when interpreting Title I X .
Specifically, courts have looked to Title VII when evaluating
Title IX claims for sexual harassment brought by employees of
educational institutions. See, e.g., Lipsett v . University of
Puerto Rico, 864 F.2d 8 8 1 , 896-97 (1st Cir. 1988). In addition,
the Supreme Court has looked to Title VII principles for guidance
in the course of its discussion of whether a student who is
sexually harassed by a teacher is entitled to a damages remedy
under Title IX. See Franklin v . Gwinnett County Public Schools,
503 U.S. 6 0 , 75 (1992). The Court analogized to Title VII in
order to determine whether a teacher's harassment of a student
constituted actionable discrimination under Title I X . Id. See
also Brown v . Hot, Sexy & Safer Productions, I n c . , 68 F.3d 5 2 5 ,
540 (1st Cir. 1 9 9 5 ) , (applying Title VII sexual harassment
standards to Title IX sexual harassment case in nonemployment context), cert. denied, ___ U.S. ___, 116 S . C t . 1044 (1996).
But see Cohen v . Brown Univ., 101 F.3d 1 5 5 , 176 (1st Cir. 1996)
(refusing to extend Title VII standards to athletics setting),
cert. denied, 117 S . C t . 1469 (1997).
In the employment context, sexual harassment is considered
to constitute a form of unlawful discrimination prohibited by
Title VII. Meritor Savings Bank, F.S.B. v . Vinson, 477 U.S. 5 7 ,
10 66 (1986). 2 Workplace sexual harassment may take the form of
"hostile environment harassment." See Lattimore v . Polaroid
Corp., 99 F.3d 4 5 6 , 463 (1st Cir. 1996). 3 "Hostile environment
harassment" consists of "offensive gender-based conduct that is
'severe or pervasive enough to create an objectively hostile or
abusive work environment--an environment that a reasonable person would find hostile or abusive' and is subjectively perceived by
the victim to be abusive." Id. (quoting Harris v . Forklift
Systems, Inc., 510 U.S. 1 7 , 21 (1993)).
The determination of whether a plaintiff has established a
hostile or abusive workplace environment requires the court to
consider all of the circumstances, but particularly those
concerning ( 1 ) the frequency of the discriminatory conduct; ( 2 )
its severity; ( 3 ) whether it is physically threatening or
humiliating rather than a mere offensive utterance; and ( 4 )
whether it unreasonably interferes with an employee's work
performance. Brown v . Hot, Sexy & Safer Productions, I n c . , supra,
2 Under Title V I I , it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). 3 Workplace sexual harassment can also take the form of "quid pro quo" harassment, which involves promises of favorable treatment or threats of unfavorable treatment calculated to coerce an employee into submitting to unwelcome sexual advances." Lattimore, supra, 99 F.3d at 463.
11 68 F.3d at 540 (citing Harris, supra, 510 U.S. at 2 3 ) . 4 As previously indicated, the relevant factors must be viewed both
subjectively and objectively. Id.
Although the sexual harassment standards under Title VII
were crafted with the purpose of rectifying and discouraging
discrimination in the workplace, the above-stated principles
provide helpful guidance when harassment of students is at issue.
In Franklin, the Supreme Court invoked Title VII principles when
it discussed whether teacher-to-student sexual harassment could
constitute actionable discrimination under Title I X . Unquestionably, Title IX placed on the [school district] 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[s]' on the basis of sex." We believe the same rule should apply when a teacher sexually harasses and abuses a student.
Franklin, supra, 503 U.S. at 75 (quoting Meritor Sav. Bank, FSB v .
Vinson, supra, 477 U.S. at 64 (emphasis added).
After Franklin, many lower courts have recognized that
sexual harassment committed by a student can, under certain
conditions, give rise to Title IX liability on the part of a
school district. See, e.g., Doe v . Londonderry School Dist., __
F. Supp. ___, 1997 W.L. 400332, at *7 (D.N.H. June 1 2 , 1997)
4 Although Brown was a Title IX case, it made use of the quoted elements which were taken from Title VII cases.
12 (collecting cases); Collier ex rel. Collier v . William Penn
School Dist., 956 F. Supp. 1209, 1213 (E.D. P a . 1997) ("Title IX
should impose liability on a school district for its failure to
prevent or eradicate a sexually hostile environment created by
students, as that environment discriminates and limits
educational opportunities based on s e x . " ) . But see Rowinsky v .
Bryan Independent School Dist., 80 F.3d 1006, 1016 (5th Cir.)
("The mere existence of sexual harassment does not necessarily
constitute sexual discrimination."), cert. denied, 117 S . C t . 165
(1996).
When sexual harassment, even when perpetrated by peers,
reaches a level that could be actionable, i.e., a level
sufficiently "severe or pervasive" to create a hostile or abusive
environment, the victim of the harassment has suffered from
gender discrimination. Just like the sexually harassed employee
who is illegally impeded from the full enjoyment of his or her job, a sexually harassed student may likewise be cut off on the
basis of sex from the privileges attending the full enjoyment of
an education. Since a good education leads to access to jobs,
discrimination in education "is doubly destructive for women."
See 118 Cong. Rec. at 5804 (1972) (comments of Sen. Bayh, sponsor
of Title I X ) . Accordingly, although the contemporaneous
legislative materials do not mention sexual harassment, applying
Title IX to peer sexual harassment cases is fully consistent with
13 one of the primary purposes behind the Act--to ensure equal
access. See id. at 5809; 5 c f . North Haven Bd. of Educ. v . B e l l ,
456 U.S. 5 1 2 , 521 (1982) (recognizing the need to "accord [Title
IX] a sweep as broad as its language" (quotation omitted)).
Defendant maintains that such analogizing to Title VII is
flawed because it ignores the unique characteristics of student-
on-student harassment. According to defendant, student-on-
student harassment lacks a key ingredient--namely, a power
differential between the harasser and the victim. However, this
notion is difficult to reconcile with employment discrimination
cases in which courts have found that harassment perpetrated by
coworkers constitutes actionable discrimination. See, e.g.,
Lipsett, supra, 864 F.2d at 897 (noting that hostile environment
harassment occurs "when one or more supervisors or coworkers
creates an atmosphere so infused with hostility towards members
of one sex that they alter the conditions of employment for them") (emphasis added). A school that knowingly condones sexual
harassment between students has misused its power in much the
same way that an employer does in a coworker sexual harassment
case.
5 Senator Bayh's full comment w a s , "So what this measure does is to strike a death blow at discrimination where it is most severely felt, where there is discrimination against women in having equal access to the kind of education they need to provide for themselves and their families." 118 Cong. Rec. at 5809.
14 Certainly there is some force to defendant's argument that the standards relevant to the "adult" workplace cannot be imported wholesale into the educational context, particularly when young children are involved. Schools are, and should b e , more casual in some respects than the workplace. Name-calling, teasing, and even physical touching take on a different significance when they occur between children, and are also more common.
However, the danger that any playground tangle will be transformed into a federal action is hopefully mitigated by the strict requirements that the harassing conduct be "severe or pervasive" before being actionable. Another mitigating factor is that the trier of fact must evaluate all of the facts and circumstances before labeling conduct as "sexual harassment." The unique circumstances of the school environment may be factored into such assessment.6
6 Defendant also argues that, unlike the employment context, schools do not have sufficient control over offending students such that their actions can be imputed to the school. The court disagrees. Schools are, or at least should b e , set up with appropriate safeguards, such as informed teachers and a working system of discipline, to prevent ongoing sexual harassment. The court further notes that, just as a school is not free to expel all offending students, an employer is likewise fettered from terminating employees, who have legal rights to continued employment. However, this does not excuse an employer for failing to take remedial action, nor should it excuse a school district.
15 b. When is a school district liable for sexual harassment
perpetrated by a student?
Perhaps the more difficult question raised by this case is
not whether student-on-student sexual harassment constitutes
sexual discrimination under Title I X , but whether (and to what
extent) the school district should be liable for i t . To properly
analyze this issue, it is again helpful to refer to standards
applicable to an employer's liability under Title VII.
The Supreme Court has not stated a definitive rule regarding
the issue of an employer's liability for hostile environment
harassment under Title VII. 7 However, the Court has advised that
agency principles, although not necessarily controlling, should
be consulted for guidance. See Meritor Sav. Bank, supra, 477
U.S. at 7 2 .
In general, an employer will be liable for hostile environment harassment perpetrated by one of its employees i f :
( 1 ) the employee was acting within the scope of employment; ( 2 )
the
employer knew or should have known of the hostile environment and
failed to take steps reasonably calculated to end the harassment;
7 The nature of an employer's liability for quid pro quo harassment or other types of sexual discrimination will not be discussed here because they are not at issue.
16 ( 3 ) the employee occupied a sufficiently high level in the
company that his or her actions could be automatically imputed to
the company; or ( 4 ) the employee acted under apparent authority
from the employer or was aided in accomplishing the harassment by
his or her relationship to the employer. 8
Of the four methods of finding employer liability under
Title V I I , the most relevant to the case at bar is the second
method,9 which imposes liability "if an official representing
that institution knew, or in the exercise of reasonable care,
should have known, of the harassment's occurrence, unless that
official can show that he or she took appropriate steps to halt
it." Lipsett, supra, 864 F.2d at 9 0 1 . See also RESTATEMENT
(SECOND) OF AGENCY § 219(2)(b) (1958) ("A master is not subject to
liability for the torts of his servants acting outside the scope
8 These four general bases of liability represent a composite taken from various sources including the RESTATEMENT (SECOND) OF AGENCY § 219 (1958) and Torres v . Pisano, 116 F.3d 6 2 5 , 119 W L 290196, at *6 (2d Cir. June 3 , 1997); Knabe v . The Boury Corp., 114 F.3d 4 0 7 , 410-11 (3d Cir. 1997) (citing Bouton v . B M W of North America, Inc., 29 F.3d 1 0 3 , 106-07 (3d Cir. 1994)); Harrison v . Eddy Potash, I n c . , 112 F.3d 1437, 1447 (10th Cir. 1997). 9 The other three methods do not appear to lend much aid. Obviously, students perpetrating sexual harassment do not act within the scope of employment, nor do they generally occupy high-ranking positions within the hierarchy of the institution. They also cannot be said to act under the apparent authority of the institution or to be aided by their relationship to the "employer."
17 of their employment, unless . . . the master was negligent or
reckless . . . . " ) .
Technically, this basis for employer liability is not a form
of vicarious liability at all, but rather is a form of "direct"
liability because the employer is liable for its own misconduct
in failing to correct known harassment occurring at the
workplace. See, e.g., Davis v . City of Sioux City, 115 F.3d
1365, 1997 WL 329583, at *3-4 (8th Cir. June 1 8 , 1997) (embracing
"knew-or-should-have-known" standard to impute liability in
hostile environment case because "'in a hostile environment
sexual harassment case, the usual basis for a finding of agency
will often disappear. In such cases, the employer should not be
held liable unless the employer itself has engaged in some degree
of culpable behavior." (quoting Kinman v . Omaha Public School
Dist., 94 F.3d 4 6 3 , 469 (8th Cir. 1996)); Faragher v . City of
Boca Raton, 111 F.3d 1530, 1538 (llth Cir. 1997) ("An employer is directly liable for hostile work environment sexual harassment if
the employer knew or should have known of the harassment and
failed to take prompt remedial action.") (citations omitted);
Baker v . Weyerhaeuser C o . , 903 F.2d 1342, 1347 (10th Cir. 1990)
(holding that plaintiff's sexual harassment claim against
employer was based on employer's own conduct, "namely its utter
failure through its officers and supervisors to take action
against [plaintiff's coworker], a known sexual harasser of
18 females," and was not based on a purported agency relationship
between harasser and employer). C f . Harrison, supra, note 8 , 112
F.3d at 1443-48 (discussing in detail nature of employer's Title
VII liability for sexual harassment).
Defendant argues, and some case law supports, that the Title
VII/knew-or-should-have-known method of conferring liability on
an employer should not be applied to school systems when they
fail to prevent sexual harassment between students. In this
court's view, defendant's position is belied by the earlier-
quoted section from Franklin, in which the Court looks to Title
VII to define the nature of Title IX discrimination. See
Franklin, supra, 503 U.S. at 7 5 . In addition, it may be
significant that the Franklin court cited Meritor with approval.
In a discussion of a school official's liability under Title IX
for failing to take remedial action to end sexual harassment
committed by students and a student-teacher, one court noted, Meritor i s , of course, the lead Supreme Court case recognizing that an employer may be liable for sexual harassment that creates a hostile work environment. By citing it with approval in the Title IX context, to define the critical concept of discrimination on the basis of sex, the Supreme Court in Franklin was analogizing the duties of school officials to prevent sexual harassment under Title I X , to those of employers under Title VII.
Oona, R.--S.-- v . McCaffrey, ___ F.3d ___, ___, 1997 WL 458675,
at *4 (9th Cir. 1997). Accordingly, since the duty of a school
19 to its students should correlate with that of an employer to its employees, it makes sense to apply the knew-or-should-have-known standard to the instant action. Otherwise, students would receive less protection from sexual harassment than would employees in the workplace. See Kracunas v . Iona College, ___ F.3d ___, 1997 WL 376912, at *7-8 (2d Cir. June 2 6 , 1997) (extending actual or constructive notice standard "to claims of hostile environment sexual harassment arising under Title I X " ) ; Murray v . New York Univ. College of Dentistry, 57 F.3d 2 4 3 , 250 (2d Cir. 1995) (using actual-or-constructive-notice standard to determine university's Title IX liability to dental student allegedly sexually harassed by patient). Therefore, Title IX provides a remedy to a student who seeks redress from a school district for the district's failure to remedy known harassment perpetrated by other students.
Defendant argues that the knew-or-should-have-known standard is a negligence standard, and therefore is inappropriate for cases brought under Title I X , which provides access to money damages only where intentional misconduct has occurred.
Defendant relies on Rowinsky, which emphasized that Title IX may have been passed pursuant to Congress's spending powers. 10
10 The Supreme Court has not yet decided whether Title IX was enacted under Congress's Spending Clause powers or section 5 of the Fourteenth Amendment. See Franklin, 503 U.S. at 75 n.8.
20 80 F.3d at 1016. The court reasoned that Title IX should prohibit the conduct of grant recipients themselves, and not acts committed by third parties, such as students. See id. at 1012- 13. Otherwise, if Title IX were to extend to acts committed by third parties, it would be difficult for grant recipients to comply with Title IX and receive needed funds. Id. at 1013.
This court agrees with Rowinsky that liability under Title IX should focus on the behavior of the grant recipient, not that of a third party. However, the constructive notice standard is a means of holding an employer or an educational institution directly liable for its own misconduct in failing to stop ongoing intentional discrimination. Accordingly, the court respectfully disagrees that "the possibility of a [Title IX] violation would be so great that recipients would be induced to turn down grants." Id. at 1013. 11
11 The court's conclusion is consistent with Franklin v . Gwinnett County School Dist., in which the defendant similarly argued that liability for a teacher's intentional acts would contravene the notice requirement imposed by the Spending Clause. The point of not permitting monetary damages for the unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. This notice problem does not arise in a case such as this, in which intentional discrimination is alleged. Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the bases of sex, and "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor
21 The First Circuit Court of Appeals has not directly
addressed whether constructive notice satisfies the
intentionality requirements of a statute passed pursuant to
Congress's powers under the Spending Clause. However, the court
implicitly sanctioned this method in Lipsett, supra.
In addition, contrary to defendant's argument, a school
district's liability will not be open-ended if a constructive
notice standard is applied. A school's liability will be limited
to situations in which ( 1 ) it has actual knowledge of the sexual
harassment; (2) the atmosphere at the school is so permeated with
harassment that the school must have known of the harassment, see
Zimmerman v . Cook County Sheriff's Dep't, 96 F.3d 1017, 1018-19
(7th Cir. 1996) (citing Meritor, supra, 477 U.S. at 7 2 ) ; or (3)
'discriminate[s]' on the basis of sex." Meritor [supra, 477 U.S. at 6 4 ] . We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe. Franklin, supra, 503 U.S. at 7 4 . This aspect of Franklin has generated some confusion among the lower courts and other observers. The idea that a school district receiving federal funds "intentionally discriminates" whenever a teacher creates a hostile environment seems to fly in the face of Meritor v . Vinson, supra, 477 U.S. at 70-73, which rejected the notion that an employee's conduct should be automatically attributed to the employer. However, by citing Meritor, the Franklin court may have been implicitly sanctioning the use of traditional methods of imputing liability (including the agency principles used in Title VII cases) in Title IX cases.
22 it knew enough underlying facts to support a reasonable
conclusion that actionable sexual harassment was occurring.
Thus, when properly applied, the standard should not punish
educational institutions for mere ineptitude or slight errors in
judgment.
A related issue that has generated disagreement among the
courts is whether an actual-knowledge standard is more
appropriate for policy reasons when cases are brought against
public schools. Compare Nicole M . v . Martinez Unified School
Sys., 964 F. Supp. 1369, ___, 1997 WL 193919, at *8 (N.D. Cal.
Apr. 1 5 , 1997) ("the plain meaning of Title IX and the Franklin
decision [have] put school districts on notice that they would be
liable for failing to take steps reasonably calculated to end
student-on-student hostile environment sexual harassment of which
they knew or should have known") and Franks v . Kentucky School
for the Deaf, 956 F. Supp. 7 4 1 , 746-48 (E.D. Ky. 1996) (applying "knew or should have known" standard in case against school
district for student-on-student harassment) with Doe v .
Londonderry School Dist., supra, 1997 WL 400332 (requiring actual
knowledge of harassment before school district can be liable for
student-on-student harassment) and Bruneau v . South Kortright
Central School Dist., 935 F. Supp. 1 6 2 , 173 (N.D.N.Y. 1996)
(same).
23 The Fifth Circuit has been the most vocal court to come out
against a constructive notice standard. See Rosa H . v . San
Elizario Indep. School Dist., 106 F.3d 6 4 8 , 652-61 (5th Cir.
1997) (rejecting constructive notice standard in teacher-student
sexual harassment case); Rowinsky, supra, 80 F.3d at 1011-16
(rejecting both constructive notice and actual notice in student-
student sexual harassment case).
The Fifth Circuit embraces an "actual knowledge" standard
because, in the court's opinion, a school district with knowledge
of all the underlying facts should be able to avoid liability if
it fails to subjectively understand that the situation involves
sexual harassment. See Rosa H., supra, 106 F.3d at 652-61. This
court disagrees. When the facts known to the school district are
sufficiently egregious to give rise to a claim for sexual
harassment, the school district should be expected to recognize
the danger and take action before avoiding liability under Title IX.
Accordingly, an educational institution can be liable under
Title IX for student-on-student sexual harassment if it knew or
should have known of the harassment and failed to take measures
reasonably calculated to end i t .
c. Is the school district entitled to summary judgment on
the Title IX claim?
24 Drawing on Title VII and Title IX jurisprudence, the court concludes that in order to prove a claim under Title IX against a school district for peer sexual harassment, plaintiffs must establish that: ( 1 ) they were students "in an educational program or activity receiving federal financial assistance within the coverage of Title IX," see Doe v . Londonderry, supra, 1997 WL 400332, at *10 (citing Bosley v . Kearney R-1 School Dist., 904 F. Supp. 1006, 1023 (W.D. M o . 1995)); ( 2 ) they were subjected to sexual harassment while participating in the program or activity, see id.; ( 3 ) the harassment consisted of offensive gender-based conduct sufficiently severe or pervasive to create an objectively hostile or abusive educational environment and was subjectively perceived by the victim to be abusive, c f . Lattimore, supra, 99 F.3d at 2 1 ; and ( 4 ) the school district knew or should have known of the harassment and failed to take steps reasonably calculated to end i t , see, e.g., Lipsett, supra, 864 F.2d at 9 0 1 .
The school district's argument at summary judgment focuses solely on the fourth element, the plaintiff's ability to hold the district liable for the acts of John. 12
12 Specifically, defendant argues that when the evidence is viewed in a light most favorable to the plaintiff, any failure to act on the defendant's part w a s , at most, the product of negligence, and without evidence of intentional conduct plaintiff cannot prove a Title IX claim. See Defendant's Memorandum at 1 7 .
25 Jane and Janet claim that they were sexually harassed by
John beginning in April of 1993. See Amended Complaint ¶ 1 3 . An
unsigned letter complaining of the harassment was left in
LeClair's mailbox on May 1 5 , 1993. See Plaintiffs' Exhibit T , ¶
8. When nothing was done in response to the letter, the girls
then came in person to discuss the matter during the last week of
school, June 1 7 , 1993. See Plaintiffs' Exhibits B , C . At some
point that day, a school employee told the girls not to tell
their parents because otherwise the school would be subjected to
Regardless of whether an actual or a constructive notice
standard is applied, a factual dispute exists concerning the
school district's knowledge of John's sexual harassment of both
Jane and Janet. On June 1 7 , 1993, the girls met with Puffer, a
guidance counselor, two times during the day. Puffer's notes
26 reveal that the girls complained about conduct that, if true, was
sufficiently severe and pervasive to raise the inference that
John was "sexually harassing" them, as the term is legally
defined. Moreover, John's alleged conduct, which ranged from
verbal obscenities to the basest of physical acts, went far
beyond anything that should be countenanced in a school setting.
See Plaintiffs' Exhibits B , C . The school district's knowledge
also can be inferred from other evidence on the record, including
the May 1993 letter left by the girls in which they complained of
"sexual harassment." Plaintiffs' Exhibit A . The letter
described some of the conduct and clearly conveyed that the
students were frightened and that the harassment was ongoing.
Although unsigned, the letter gave enough identifying information
(such as which classes the sexual harassment was happening i n ) to
permit a reasonable person to conclude that LeClair might have
discovered the identities of the writers without much effort. C f . Knabe v . The Boury Corp., supra, 114 F.3d at 413 (explaining
that under Title VII "an employer can be held liable if a faulty
investigation renders its subsequent remedial action
inadequate").
Furthermore, genuine issues of material fact exist regarding
whether the girls complained solely on behalf of Jane or on
behalf of Janet as well. Compare Affidavit of Stephen LeClair ¶
6 (attached to defendant's motion) ("I was under the impression
27 that [John's] harassment was targeted solely at [Jane].") with
Deposition of Carolyn D. Puffer (attached to plaintiff's motion)
("My memory says that it was a general group experience and there
had been some specific things to [Jane].").
The next question regarding the school's liability under
Title IX is whether it took steps reasonably calculated to end
the harassment. Courts have not yet had occasion to elaborate on
what steps a school must take to avoid liability once it becomes
aware of ongoing sexual harassment between students. Some of the
rules employed in the context of Title VII cases provide helpful
guidance to the case at bar. If the school selects an adequate
course of action, even if it does not involve punishment, an
aggrieved student cannot object to the selected action. See
Knabe, supra, 114 F.3d at 414 (discussing employment
discrimination situation). The school need not follow the course
preferred by the student or the student's parents. Id. All that is required is that the school take steps "reasonably likely" to
stop the harassment. Id. (quoting Saxton v . AT&T C o . , 10 F.3d
526, 535-56 (7th Cir. 1993)). Moreover, even if the sexual
harassment continues, the school could possibly be exonerated if
it took reasonable steps to stop the harassment every time it
became aware of i t .
Applying these general principles to the case at bar, the
court has little trouble finding that defendant is not entitled
28 to summary judgment on the issue of whether the school took
reasonable steps to end John's harassment of Janet. When the
evidence is viewed in a light most favorable to the plaintiffs,
the school was on notice of the harassment of Janet as early as
May 1 5 , 1993. The school apparently did not address the issue of
John's harassment of Janet at the time, nor did it take any
reasonable action to ensure that John would not continue to
harass Janet in the coming fall year. The school apparently
failed to take even the most basic step of alerting the teachers
of the classes shared by John and Janet.
The school district will likely argue that it is entitled to
summary judgment because Janet may have failed to have complained
about John's conduct when it reoccurred in the fall. C f . Murray
v . New York Univ., supra, 57 F.3d at 250-51 (holding in Title IX
action that university did not have constructive knowledge of
sexual harassment because student failed to notify university that harassment continued following university's reprimand of
harasser). Ordinarily, the court would agree. However, in light
of the school's arguable failure to properly respond to Janet's
complaints the previous spring, as well as the guidance
counselor's statement implying that the students should keep
quiet because the school feared lawsuits, the jury should decide
whether Janet was justified in believing another complaint to the
school would have been a futile exercise.
29 With regard to Jane's complaints about the harassment, the
school district was more proactive, making its liability much
more tenuous. The school took steps both in June and throughout
the summer of 1993 to prevent John from continuing to harass
Jane. With the agreement of Jane's father, the school procured
both a written and a verbal apology from John to Jane, and ensured that John obtained counseling before returning to school
in the fall. In addition, the school made some arrangements for
John to have enhanced discipline should he misbehave in the fall.13
Nonetheless, several factors require that the jury be the
ultimate arbiter of the issue. First, given the severity of
John's conduct, a question arises as to whether the school's
response was reasonably calculated to end the harassment; it is
not clear at this stage of the litigation whether John's
"punishment fit the crime," so to speak. 14 Second, other
factors, including LeClair's apparent failure to investigate the
May 15 letter and a guidance counselor's expression of concern
13 Plaintiff argues that the school may have been sloppy in implementing each of these remedies. It also appears that in the fall of 1993 Jane and Jane's parents became unhappy with the school's response and would have preferred greater discipline. However, these facts alone do not persuade the court that the school failed to take adequate steps to remedy the harassment. 14 In cases involving sexual harassment of a less severe nature, the court suspects that it will be much easier for a school system to show at summary judgment that it took reasonable steps to end i t .
30 about "flying" lawsuits, also cast doubt on the reasonableness of
the school's response. Accordingly, albeit with some reluctance,
the court finds and rules that genuine issues of material fact
exist regarding Jane's Title IX claim as well.
d. Does Jane's mother have standing to bring a claim on her
own behalf under Title IX?
Defendant argues that Jane Doe's mother lacks standing to
assert a claim on her own behalf against the school district
under Title IX. Ordinarily, only participants of federally
funded programs--and not the participants' parents--have standing
to bring claims under Title I X . See, e.g., Burrow, supra, 929 F.
Supp. at 1199; Bosley, supra, 904 F. Supp. at 1020; R.L.R. v . The
Prague Public School Dist., 838 F. Supp. 1526, 1530 (W.D. Okla.
1993); c f . Jackson v . Katy Indep. School Dist., 951 F. Supp.
1293, 1298 (S.D. Tex. 1996) (holding that parents lacked standing
to assert claim for damages under Title VI in their own right,
but could bring action in behalf of s o n ) . Accordingly, standing
concerns preclude Jane's mother from asserting a claim in her own
right under Title I X . Her claim is therefore dismissed.
e. Can plaintiffs recover punitive damages under Title IX?
Defendant next argues that it is entitled to summary
judgment on plaintiffs' claims for punitive damages under Title
31 IX. Title IX does not expressly provide for either compensatory
or punitive damages for private litigants. The Supreme Court has
held that Title IX is enforceable through an implied right of
action. Cannon v . University of Chicago, 441 U.S. 677 (1979).
In Franklin, the Court found that a plaintiff asserting a claim
for intentional violation of Title IX against a local school district is entitled to a damages remedy. See Franklin, supra,
503 U.S. at 72-73. The Court did not specify whether such remedy
could include punitive damages, much less whether it includes
punitive damages against a municipal entity.
The Franklin court relied on the presumption that once a
right of action has been recognized a federal court has the power
to award "all appropriate remedies" unless Congress has indicated
otherwise. Id. at 6 6 . Congress may indicate its intent by
statutory language, clear legislative history, or the statutory
remedy itself. See Bush v . Lucas, 462 U.S. 3 6 7 , 378 (1983). "In
the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate
for a common-law tribunal, paying particular heed, however, to
any special factors counseling hesitation before authorizing a
new kind of federal litigation." Id.
After evaluating both the state of the law at the time of
the passage of Title IX and certain post-enactment events, the
Franklin Court concluded that Congress had not limited the
32 private remedies available in Title IX actions. Franklin, supra, 503 U.S. at 7 3 . As of the late nineteenth century, the punitive damages doctrine "was accepted as settled law by nearly all state and federal courts, including [the United States Supreme Court]." Smith v . Wade, 461 U.S. 3 0 , 35 (1983). Thus, the logical conclusion to be drawn from Franklin is that all remedies, including punitive damages, are available to private litigants under Title IX. 15
Even assuming that plaintiffs have a general right to seek
punitive damages under Title I X , the right may not extend to
claims against a municipality, particularly where, as here, only
isolated incidents of discrimination on the part of the local
government have been claimed. Absent a specific, contrary indi
15 Following Franklin's endorsement of any appropriate remedy under Title I X , many, but not a l l , lower courts have recognized that punitive damages awards are available under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 7 0 4 , a statute whose enforcement regime, as well as legislative history, closely tracks that of Title I X . See, e.g., Pandazides v . Virginia Bd. of Educ., 13 F.3d 8 2 3 , 830-32 (4th Cir. 1994); Hernandez v . City of Hartford, 959 F. Supp. 1 2 5 , 133-34 ( D . Conn. 1997); Kilroy v . Husson College, 959 F. Supp. 2 2 , 24-25 ( D . M e . 1997); DeLeo v . City of Stamford, 919 F. Supp. 7 0 , 72-74 ( D . Conn. 1995) (recognizing punitive damage remedy for section 504 claim against a city); Kedra v . Nazareth Hosp., 868 F. Supp. 7 3 3 , 739-40 (E.D. P a . 1994). C f . Reich v . Cambridgeport Air Systems, I n c . , 26 F.3d 1187, 1191 (1st Cir. 1994) (relying on Franklin to find that "all appropriate relief" language in subsection of OSHA included exemplary damage awards); Rodgers v . Magnet Cove Public Schools, 34 F.3d 6 4 2 , 642-45 (8th Cir. 1994) ("Franklin, therefore, states that Title IX provides a full spectrum of remedies"). But see Moreno v . Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996) (finding that despite the language in Franklin, punitive damages are not available under section 5 0 4 ) .
33 cation from Congress, courts should refrain from interpreting
federal statutes as allowing punitive damages awards against
municipal entities. See City of Newport v . Fact Concerts, I n c . ,
453 U.S. 2 4 7 , 263-64 (1981). This is because Congress is
presumed to have been aware of the longstanding common law rule
protecting municipalities from punitive damages awards. See id.
at 2 5 8 .
Review of the text of Title IX and the context in which it
and Title VI (which Title IX was modeled after) were enacted
provides scant evidence that Congress intended to disturb the
immunity to punitive damages enjoyed by local governing bodies.
To the contrary, in Cannon, when the Supreme Court first
recognized an implied right of action under Title I X , it did s o ,
in part, to alleviate the burdens placed on grant recipients by
the harsh sanctions inherent in the then-existing statutory
procedures for cutting off federal funding. Congress passed Title IX in 1972 in order to accomplish two
objectives: (1) to avoid the use of federal resources to support
discriminatory practices; and ( 2 ) to provide individual citizens
with effective protection against those practices. See Cannon,
supra, 441 U.S. at 7 0 4 . To effectuate the first purpose,
Congress provided a statutory procedure for the termination of
federal financial support for offending institutions. See id. at
704. Given the harshness and severity of cutting off federal
34 funding to a grant recipient, some members of Congress believed
that private lawsuits would provide a less burdensome and more
efficient alternative, particularly when isolated violations have
occurred. [The remedy of terminating federal funding] i s , however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred. In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded. Moreover, in that kind of situation it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, or on HEW, the burden of demonstrating that an institution's practices are so pervasively discriminatory that a complete cut- off of federal funding is appropriate. The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with--and in some cases even necessary to--the orderly enforcement of the statute.
Id. at 704-05. The remedy of a private lawsuit was considered by
some members of Congress as a means of protecting grant
recipients from more onerous sanctions.
"Personally, I think it would be a rare case when funds would actually be cut off. In most cases alternative remedies, principally lawsuits to end discrimination, would be the preferable and more effective remedy. If a Negro child were kept out of a school receiving Federal funds, I think it would be better to get the Negro child into school than to cut off funds and impair the education of the white children."
35 Id. at 704-05 n.38 (quoting 110 Cong. Rec. 7067 (1964) (Sen Ribicoff). 16
The Cannon court makes another interesting observation. An
earlier version of Title VI simply permitted federal agencies to
withhold funds from offending recipients and does not even
implicitly refer to an individual right against discrimination.
See Cannon, supra, 441 U.S. at 716 n.51. Title V I , in its final
form, is far more conducive to a private right of action;
however, it "was arguably less conducive to implication of a
private remedy against the Government (as well as the recipient)
to compel the cutoff of funds." Id. This compromise may
indicate that Congress was leery of giving private litigants the
power to threaten grant recipients with large, punitive
sanctions.
Finally, even under the administrative scheme created to
enforce Title VI (and, by extension, Title I X ) , the punitive-like
sanction of terminating federal funding was considered a remedy
16 Echoing this concern, an opponent of Title VI stated, "Why does the Senator rely on the court's authority [under the Fourteenth Amendment], instead of giving arbitrary, capricious, wholesale punitive power to some Federal bureaucrat to starve entire cities, towns, States, and regions at one fell swoop?"
Id. at 710 (quoting 110 Cong. Rec. 5254 (1964) (Sen. Talmadge).
36 of last resort, to be used only when other, more resourceful means of ending the discrimination proved to be unworkable.
"[Title VI] encourages Federal departments and agencies to be resourceful in finding ways of ending discrimination voluntarily without forcing a termination of funds needed for education, public health, social welfare, disaster relief, and other urgent programs. Cutoff of funds needed for such purposes should be the last step, not the first, in an effective program to end racial discrimination."
Cannon, supra, 441 U.S. at 721-22 (White, J., dissenting)
(quoting 110 Cong. Rec. 6546 (1964)).
The court expresses no opinion about whether this very
limited legislative history analysis has any bearing on punitive
damages claims in general under Title I X . It does indicate,
however, that Congress was sensitive to the financial
difficulties of grant recipients and that it demonstrated no
intention of disturbing the common law rule that municipalities are entitled to immunity from punitive damages. 17
17 However, in the rare case in which a local public school district has demonstrated complete indifference to the requirements of Title IX and has committed ongoing egregious violations with no sign of relenting, a federal court might determine, in its discretion, that a punitive damages remedy for a private party is the best, or only, means of forcing the school district into compliance. In such a case, the public policies underlying municipal immunity might give way in favor of the federal government's overriding interest in preventing its funds from being spent on discriminatory practices. The circumstances alleged in the present action against defendant are such that the court need not address the issue.
37 Plaintiffs might respond by relying on the Rehabilitation
Amendments Act of 1986 (also known as "The Civil Rights
Equalization A c t " ) , Pub. L . 99-506, 100 Stat. 1845, codified at
42 U.S.C. § 2000d-7. The Amendments Act abrogates the states'
Eleventh Amendment immunity from suit brought under Title I X ,
Title V I , section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. The Act expressly provides that
states would be liable to the same extent as public or private
entities under these statutes. In a suit against a State for a violation of a statute referred to in paragraph ( 1 ) , remedies (including remedies both at law and in equity) are available for such a violation 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.
42 U.S.C. § 2000d-7(a)(2). Plaintiffs might argue that with this
section Congress demonstrated its intention that municipalities
stand on an equal footing with private defendants. Thus, in
addition to abrogating the states' sovereign immunity, Congress
arguably also dispensed with municipal immunity to punitive
damages.
In addition to explicitly abrogating the states' Eleventh
Amendment immunity, Congress's implicit purpose in enacting the
Rehabilitation Amendments Act was to validate, for the first
time, the use of traditional, common law remedies in Title IX
actions. See Franklin, supra, 503 U.S. at 72-73. Of course, in
38 light of Newport, remedies "at law or in equity," do not include
punitive damages awards against municipalities. Accordingly,
since this provision is susceptible to different interpretations,
it is not clear whether Congress intended to disturb the immunity
traditionally enjoyed by local governing bodies.
Fortunately, the court need not decide this nettlesome question because defendant is entitled to summary judgment on the
alternative ground that the evidence does not support the
inference that punitive damages are warranted in this case.
Punitive damages are awarded as a matter of public policy
for the purpose of either punishing the defendant or deterring
others from engaging in similar conduct in the future. McKinnon
v . Kwong Wah Restaurant, 83 F.3d 4 9 8 , 508 (1st Cir. 1996). Not
all intentional torts are eligible for punitive damages awards.
See id. at 509. Instead, the plaintiff must show that defendant
acted outrageously, because of defendant's evil motive or
reckless indifference to the rights of others. Id. at 509 (citing Hernandez-Tirado v . Artau, 874 F.2d 866, 869 (1st Cir.
1989)).
To support the need for punitive damages, Janet outlines a
series of missteps made by different individuals within the ranks
of the school district. Except for one comment made by a
guidance counselor at the very end of the girls' seventh grade
year, there is little to no evidence that the officials at the
39 school district acted with malicious intent. Also, although the
school
district may have failed to take appropriate action to end the
harassment, it does not appear that it acted with reckless
indifference to plaintiffs' rights in this regard. The Office
for Civil Rights did not determine that peer sexual harassment even constitutes a violation of Title IX until 1997. See Office
for Civil Rights, Sexual Harassment Guidance: Harassment of
Students by School Employees, Other Students, or Third Parties ,
62 Fed. Reg. 12,034 (1997) (final policy guidance). Likewise,
judicial recognition of this type of violation is also of very
recent vintage.
Plaintiffs' claims for punitive damages under Title IX must
therefore be dismissed.
3. The Section 1983 Claim
Defendant next asserts that it is entitled to summary
judgment on plaintiffs' claims brought pursuant to 42 U.S.C. §
1983.
Plaintiffs base their section 1983 claim on the school
district's failure to take action to protect Jane and Janet from
the abuse perpetrated by John. They claim that the school's duty
to protect them arose out of the special relationship between the
girls and the school and that breach of this duty constitutes a
violation of their Due Process rights.
40 Under the Constitution, the state has an affirmative duty to
care for and protect private individuals only under certain
limited circumstances. See DeShaney v . Winnebago County Dep't of
Social Services, 489 U.S. 189, 198 (1989). Such duty can arise
when "the State takes a person into its custody and holds him
there against his will." Id. at 199. Crucial to the inquiry is whether the state has taken an affirmative act of restraining the
individual from acting on his own behalf. See id. C f . Monahan
v . Dorchester Counseling Center, 961 F.2d 9 8 7 , 990-92 (1st Cir.
1992) (rejecting Due Process claim of patient who had voluntarily
committed himself to care of Department of Mental Health).
Plaintiffs provide no evidence sufficient to support the
inference that at any point they participated in the public
school system against their will, much less that the school
istrict took any affirmative action to prevent them from
protecting themselves. See, e.g., Doe v . Londonderry, supra,
1997 WL 400332, at *13 (rejecting section 1983 claim of public school student); Dorothy J. v . Little Rock School Dist., 7 F.3d
729, 732 (8th Cir. 1993) (rejecting Due Process claim because
state-mandated school attendance does not render a child's
guardians unable to care for the child's basic needs).
Accordingly, defendant is entitled to summary judgment on
plaintiffs' section 1983 claims.
Conclusion
41 Defendant's motion for summary judgment (document 1 6 ) is
granted as to the following claims: ( 1 ) Jane's mother's Title IX
claim; ( 2 ) the section 1983 claim in its entirety; and ( 3 )
plaintiff's claim for punitive damages under Title I X .
Defendant's motion for summary judgment is otherwise denied.
Defendant's motion to dismiss (document 1 5 ) is denied as moot because it has been treated as part of the motion for
summary judgment.
Finally, the court grants plaintiffs' motion to amend the
complaint (document 1 9 ) to add new factual allegations. However,
the three categories of claims mentioned above shall remain
dismissed.
SO ORDERED.
Shane Devine, Senior Judge United States District Court August 2 5 , 1997
cc: All Counsel
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Janet Doe v. Oyster Riv. School Dist., Counsel Stack Legal Research, https://law.counselstack.com/opinion/janet-doe-v-oyster-riv-school-dist-nhd-1997.