Schoepfer v. UNH

Opinion

Schoepfer v. UNH CV-97-42-SD 02/04/99 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Franz J. Schoepfer, Administrator of the Estate of Joann D. Schoepfer

v. Civil No. 97-42-SD

The University System of New Hampshire, et al

O R D E R

In this civil rights action, plaintiff Joann Schoepfer1

alleges that her employer. University of New Hampshire,

discriminated against her in the terms and conditions of

employment on the basis of her sex and religion. Currently

before the court are defendants' renewed motion for partial

judgment on the pleadings, defendants' request for clarification

of the court's Order of March 4, 1998, and an assented-to motion

for substitution of parties.

1. Defendants' Motion for Judgment on the Pleadings

Defendants filed a previous motion for judgment on the

pleadings on December 17, 1997, in which they argued that the

1Joann Schoepfer is now deceased, and Franz Schoepfer therefore will be substituted as plaintiff. university police department was not an educational program

covered by Title IX. The court rejected this argument as

inconsistent with the Congressional intent expressed in an

amendment to Title IX providing that "the term 'program or

activity' . . . mean[s] all of the operations of a college,

university, or other postsecondary institution." 20 U.S.C. §

1687(2)(A); see Order of March 4, 1998. Congress enacted this

amendment "to restore . . . institution-wide application" of

Title IX after the United States Supreme Court had held that

application of Title IX was to be determined by separate analysis

of each identifiable program within an institution. See Grove

City College v. Bell, 465 U.S. 555, 570-74 (1984).

After the March 4, 1998, ruling defendants filed a motion

for reconsideration, arguing both that the university police

department was not an educational program subject to Title IX,

and that Title IX does not provide a private right of action for

an employee. The court acknowledged that there is a split of

authority on the latter issue, but declared the cases finding

Title IX contains an implied private cause of action for

employment discrimination to be the better reasoned. The

reasoning the court found more persuasive was based on the fact

that

in North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982), the Court upheld federal regulations issued under Title IX prohibiting employment

2 discrimination on the basis of sex at federally funded education institutions. Under Cannon v. University of Chicago, 441 U.S. 667 (1979), it is undisputed that a private right of action exists under Title IX. It appears inconsistent to hold that the private right of action under Cannon extends to some, but not all, of the conduct prohibited by Title IX.

Order of April 16, 1998, at 2. The court also rejected

defendants' argument that the instant case can be distinguished

fromLipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.

1988), in which the United States Court of Appeals for theFirst

Circuit implicitly recognized a private cause of action for

employment discrimination under Title IX.

Defendants' current motion for judgment on the pleadings

asks the court to reconsider its finding that Title IX creates

an individual cause of action for employment discrimination.

Defendants base this request on "new authority." Defendants'

Renewed Motion for Partial Judgment on the Pleadings Based on New

Authority at 2. None of the cited cases, however, is controlling

on this court; indeed, none of the cases are even circuit court

decisions. While the court acknowledges that the current trend

seems to be away from finding a Title IX private cause of action

for employment discrimination, the controlling authority in this

circuit recognizes a private right of action for employment

discrimination. See Lipsett, supra, 864 F.2d at 897.

3 2. Defendants' Recruest for Clarification

Defendants request the court to find that defendant Beaudoin

cannot be individually liable under Title IX. Although this

issue was not previously presented to the court, it should be

determined before this matter goes to trial. As plaintiff

acknowledges, the First Circuit has previously stated that Title

IX cases may only be brought against educational institutions.

See Lipsett, supra, 864 F.2d at 901. Thus plaintiff's Title IX

claim against Beaudoin must be dismissed.

Conclusion

For the abovementioned reasons, defendants' renewed motion

for judgment on the pleadings (document no. 28) is denied,

defendants' request for clarification (document no. 25) is

granted, and plaintiff's motion for substitution of parties

(document no. 29) is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 4, 1999

cc: John M. Lewis, Esq. Martha V. Gordon, Esq.