Defendant Downing was an administrative level employee in charge of student organizations and activities at the Ambler campus, and he was also responsible for the Student Activities Office where plaintiff was employed. (Id. P11.)
Plaintiff's complaint alleges that Downing subjected her to repeated and unwelcome sexual harassment and sexual assault from early September 1993 and continuing through the filing of her administrative complaint with the University's Office of Affirmative Action on September 22, 1994. (Id. P 14.) Thereafter, plaintiff met with the Dean and an Assistant Dean of the Ambler campus to discuss the alleged harassment. (Am. Compl. P 17-20.) The Office of Affirmative Action embarked upon an investigation of the allegations and, in February 1995, determined that there was a basis for believing that a violation of the University's sexual harassment policy had occurred. (Id. P 27(f).) At that time, the University apparently suspended Downing. (Id. P28.) On June 5, 1995, plaintiff received a letter from the Office of Affirmative action which concluded that the actions of Downing "as alleged, constitute a violation of the policy on sexual harassment." (Id. P27(g).)
After filing the formal administrative complaint, Downing allegedly retaliated against plaintiff by adversely treating her and the student organization she managed, by defaming plaintiff, by attempting to organize students to impeach her as the general manager of a student organization, and by filing a civil complaint against plaintiff in the Court of Common Pleas of Philadelphia County. (Id. P 21-26.)
Plaintiff filed sexual harassment and retaliation complaints with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission; she received right to sue letters from each agency. (Id. P29-30.) Plaintiff filed this action against Downing and Temple University on August 10, 1995, asserting violations of, and seeking damages under, Title IX and various state law claims.
II. The Title IX Claims :
For purposes of the motion currently before the court, none of the material facts are in dispute; the sole issue under consideration is whether Title IX supports a cause of action against individuals.
A brief review of the history of litigation under Title IX reveals that the issue has not yet been settled.
In 1979, the Supreme Court determined that Title IX is enforceable through an implied private right of action. Cannon v. University of Chicago, 441 U.S. 677, 689, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). In 1992, the Supreme Court settled a divide among the courts of appeals by finding that the implied right of action supports a claim for monetary damages. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992) (adopting the stance of the Third Circuit Court of Appeals in Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990)). In Cannon and Gwinnett, however, the Court did not indicate whether individuals were among those against whom the implied cause of action could be brought.
A majority of the few cases explicitly addressing the issue have concluded that Title IX does not authorize a cause of action against individuals. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988) ("In implying a cause of action under Title IX, the Supreme Court has considered only actions against educational institutions . . . . Accordingly, the separate liability of the supervisory officials must be established, if at all, under section 1983, rather than under Title IX."); Clay v. Board of Trustees of Neosho County Community College, 905 F. Supp. 1488, 1495-96 (D. Kan. 1995); Doe v. Methacton Sch. Dist., 1995 WL 549089, at *2 (E.D. Pa. Sept. 12, 1995) (opinion by Magistrate Judge Powers); Leija v. Canutillo Sch. Dist., 887 F. Supp. 947, 952 (W.D. Texas 1995); Aurelia D. v. Monroe County Bd. of Educ., 862 F. Supp. 363, 367 (M.D. Ga. 1994); Bowers v. Baylor, 862 F. Supp. 142, 145-46 (W.D. Texas 1994); Seamons v. Snow, 864 F. Supp. 1111, 1116 (D. Utah 1994); Doe v. Petaluma, 830 F. Supp. 1560, 1576-77 (N.D. Cal. 1993); Bougher v. University of Pittsburgh, 713 F. Supp. 139, 143 (W.D. Pa.), aff'd on other grounds, 882 F.2d 74 (3d Cir. 1989); Bagley v. Hoopes, 1985 WL 17643, at *5 (D. Mass. Aug 6, 1985).
In Petaluma, a junior high school student brought an action against the school district, a school counsellor, and the principal, alleging that all of the defendants failed to stop the sexual harassment of the student by her peers. Petaluma, 830 F. Supp. at 1564-65. The court held that there is no cause of action against individuals under Title IX and, therefore, dismissed plaintiff's Title IX claims as to the school counsellor and the principal.
Id. at 1576-77. The court in Petaluma reasoned that "since the Act prohibits discrimination against beneficiaries in programs and activities that receive federal financial assistance, . . . it is the educational institution that must be sued for violations of Title IX." Id. The court further asserted that the "fact that administrative enforcement is directed at the institution that receives federal funds suggests that the private right of action is similarly confined to actions against the institution." Id. at 1577.
The court also looked to recent legislation to find more validation of its position. In 1986, Congress passed 42 U.S.C. § 2000d-7, which provided that remedies under Title IX are available against a state "to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than the state." 42 U.S.C. § 2000(d)-7(a)(2). The court inferred that "the 1986 Amendment is consistent with the conclusion that there is no private right of action against individuals, since only remedies against 'public or private entities' are mentioned." Petaluma, 830 F. Supp. at 1577.
The Petaluma court also drew an analogy between Title IX and Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Because Title VII and the ADEA attack evils "so intimately related to Title IX's history and the evils it attacks that it would make little sense to interpret Title IX to permit individual liability absent clear direction from Congress." Id.5
Petaluma appears to be the only decision in which a court finding no individual liability under Title IX engaged in a lengthy analysis of the issue. Nonetheless, as noted above, the great majority of cases presented with a Title IX cause of action against an individual have found, albeit in a conclusory fashion, no such liability.
Two district court opinions, cited by plaintiff, seem to allow a Title IX cause of action against individuals. See Mennone v. Gordon, 889 F. Supp. 53, 56-57 (D. Conn. 1995); Mann v. University of Cincinnati, 864 F. Supp. 44, 47 (W.D. Ohio 1994).
The Mann court, however, did not allow a Title IX cause of action to proceed against an individual in his personal, or individual, capacity. Instead, the court allowed a Title IX claim against an individual in his official capacity.
The distinction between suit against an individual in his personal capacity and suit against an individual in his official capacity is not without significance. The Supreme Court has noted:
Official capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' . . . As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity. . . . It is not a suit against the official personally, for the real party in interest is the entity.