and notes were directed toward her on the basis of her gender.
Although we are not bound by Lipsett, we find that Plaintiff has sufficiently pleaded a violation of the Constitutionally protected right to an equal educational opportunity. Further, we find that this claim is sufficiently intelligible to give the Defendant notice of the claim against him. Accordingly, Defendant's motions for dismissal or for a more specific pleading on the Equal Protection claim are DENIED.
C. Title II of the ADA and the RHA
Defendant moves for dismissal or for a more definite statement of Plaintiff's ADA and RHA claims. First, Defendant argues that Plaintiff may not seek recovery under Title II of the ADA from Defendant, as Title II proscribes discrimination by public entities against disabled people. See 42 U.S.C.A. § 12115. In support of his motion, Defendant argues that the ADA does not apply to him because: 1) he is not a public entity; 2) the alleged harassment was of a private nature and the ADA was not designed to cure private behaviors of state actors; and 3) the alleged harassment was not perpetrated on the basis of Plaintiff's disability.
Defendant's first contention is that the ADA does not apply to him as he is not a public entity. Plaintiff responds by asserting she is bringing her ADA and RHA claims against the College as an entity. As stated previously, Plaintiff's complaint must be amended to reflect this assertion. We find that her assertion that she is suing Defendant in his official capacity is sufficient to demonstrate suit against a public entity.
Defendant's second contention is that Plaintiff's complaint should be dismissed as the ADA was not designed to cure private harassment against individuals by employees of public entities. Defendant cites no case law in support of this contention, but instead looks to the legislative history of the ADA. Defendant correctly asserts that the purpose of Title II of the ADA is to require public entities to make "reasonable accommodations" for disabled people. However, Defendant urges these accomodations should be solely structural.
The purpose of the ADA is broad in scope. Section 12131 of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity."
The plain meaning of the statute dictates that public actors may not exclude disabled people from the services of a public institution. Thus, harassment by a public actor such as Defendant falls within the ambit of the Act if on the basis of her disability, he excluded Plaintiff from services offered by the College.
Defendant's third argument is that Plaintiff was not denied a service of a public entity on the basis of her disability. In support of this contention, Defendant points to the fact that Plaintiff's disability did not manifest itself until after he engaged in the alleged conduct.
Plaintiff alleges, however, that Defendant learned of her disability and knowingly sought to take advantage of her on that basis. In fact, Plaintiff alleges that Defendant "stepped up" his behavior upon learning of her disability. Furthermore, she alleges that his actions ultimately forced her to miss classes and that her grades suffered. Thus, we find that Plaintiff sufficiently pleads that Defendant deprived her of the benefit of an education on the basis of disability.
Plaintiff has alleged that she was a disabled person under the meaning of the Act, and that she was denied a benefit or service of a public entity on the basis of that disability. These are sufficient allegations to state a claim under the ADA. Accordingly, Defendant's motions to dismiss or alternatively for a more specific pleading are DENIED as to claims under the ADA.
Defendant also moves to dismiss Plaintiff's RHA claim on grounds identical to those asserted for dismissal of Plaintiff's ADA claim. For the same reasons as those supporting the ADA claim, we hold that Plaintiff has already pleaded facts sufficient to state a RHA claim. Defendant's motions to dismiss or alternatively for a more specific pleading are DENIED as to claims under the RHA.
An appropriate Order follows.
APRIL 13, 1995
AND NOW, this 13th day of April, 1995, upon consideration of Defendant's motion for dismissal pursuant to Rule 12(b)(6) and Plaintiff's responses thereto, the Motion is hereby DENIED.
Upon consideration of Defendant's alternative motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) and Plaintiff's responses thereto, the Motion is hereby GRANTED in part and DENIED in part. Defendant's Motion is hereby GRANTED as to the request for a more definite statement of the parties subject to suit. Defendant's Motion is hereby DENIED in all other respects.
BY THE COURT:
J. CURTIS JOYNER, J.