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COLLIER v. WILLIAM PENN SCH. DIST.

February 28, 1997

KELLIE COLLIER, a minor, by her parent and natural guardian DENNIS COLLIER
v.
WILLIAM PENN SCHOOL DISTRICT, et al.



The opinion of the court was delivered by: BARTLE

 Bartle, J.

 February 28, 1997

 A complaint should be dismissed pursuant to Rule 12(b)(6) only where "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). All well pleaded factual allegations in the complaint are assumed to be true and viewed in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969).

 For the purposes of the present motion, we must accept as true the facts alleged in the complaint. Plaintiff currently is a special education student at Penn Wood High School in the WPSD. From the seventh through ninth grades, while at Penn Wood Junior High School in the WPSD, she endured repeated sexual harassment from male students in her class. The harassment included offensive language, sexual innuendo, sexual propositions, and threats of physical harm. From the outset, plaintiff and her father repeatedly complained to teachers, supervisors, and administrators of WPSD about the situation. They also requested that WPSD remove plaintiff from those classes where the offending students were enrolled. WPSD undertook no corrective action.

 The harassment escalated until, on May 21, 1996, a male student who had sexually harassed plaintiff in the past, and about whom the Colliers had complained, exposed his penis to plaintiff and grabbed her breast. Plaintiff and her father reported this incident to WPSD administrators and employees. Once again, defendants made no effort to alleviate the harm. Plaintiff alleges that the harassment has carried over to Penn Wood High School. Despite the Collier's persistent complaints, neither WPSD nor any of its employees has remedied the problem.

 I. Title IX

 Plaintiff first asserts that the defendants have violated her educational rights under 20 U.S.C. § 1681 et seq., commonly known as "Title IX." Title IX provides, in pertinent part, that:

 
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 .... *fn1"

 20 U.S.C. § 1681(a). It is well-established that Title IX is enforceable through an implied private right of action. Cannon v. University of Chicago, 441 U.S. 677, 709, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). This right of action includes a claim against a school district for money damages where a teacher sexually harasses a student. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992). What remains unsettled, however, is the issue at the heart of this litigation: does Title IX also warrant money damages when the alleged harassment is inflicted by fellow students?

 Plaintiff contends that the defendants should be liable for the sexually hostile environment created by the harassment of her peers at Penn Wood Junior and Senior High Schools. Specifically, she argues that the defendants' failure to stop or at least curtail the harassment has "on the basis of sex ... denied [her] the benefits of ... [and] subjected [her] to discrimination under" an education program receiving federal financial assistance. 20 U.S.C. § 1681(a). Additionally, plaintiff avers that her Title IX claim should be governed by those legal standards which apply to Title VII cases where employers countenance a sexually hostile work environment created by employees. 42 U.S.C. § 2000e-2(a); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). Defendants argue that Title IX does not authorize a damage claim for a sexually hostile environment created by students and that, even if it does, Title VII analysis does not apply. As far as we can determine, this is a matter of first impression in this judicial Circuit.

 Only one Court of Appeals has definitively answered the question presented by this case. *fn2" In Rowinsky v. Bryan Independent Sch. Dist., 80 F.3d 1006 (5th Cir. 1996), the Fifth Circuit concluded that damages are not available under Title IX for a sexually hostile environment created by students. In that case, two female students were physically and verbally abused by male students on the school bus they rode to school each day. The female students complained to the bus driver on several occasions. These students and their parents also voiced concern to the assistant principal, the assistant director of the school transportation office, the director of secondary education, and the Superintendent of the School District. However, none of the persons contacted took any action other than to suspend one of the male students for three days. The female students sued the School District and several of its employees under Title IX, alleging that they condoned and caused hostile environment sexual harassment. Id. at 1009-10. The district court entered summary judgment in favor of the defendants.

 The Fifth Circuit affirmed. It held that Title IX's prohibition of discrimination only attaches to the actions of a federal fund recipient, such as the school district, not those of any third parties. Since the school district itself had not harassed the students, it could not be liable. Id. at 1013. The school district could be liable, if at all, only when "[it] responded to sexual harassment claims differently based on sex. Thus, a school district might violate title IX if it treated sexual harassment of boys more seriously than sexual harassment of girls ...." Id. at 1016.

 We disagree with Rowinsky. The Fifth Circuit failed to consider the role the omissions of the school district may have played. In our view, the inquiry should focus on whether the school district, as a recipient of federal funds, failed, after notice, to prevent or curtail the sexual harassment of students within its charge. Accord Doe v. Petaluma City Sch. Dist., 949 F. Supp. 1415 (N.D. Cal. 1996). The text of Title IX should be given "a sweep as broad as its language." North Haven Bd. Of Educ. v. Bell, 456 U.S. 512, 521, 72 L. Ed. 2d 299, 102 S. Ct. 1912 (1982) (citation omitted). Title IX broadly declares that no student shall be "excluded from participation in, be denied the benefits of, or be subjected to discrimination under" any federally-funded educational program. 20 U.S.C. § 1681(a). Plaintiff alleges that WPSD was aware that its students were harassing her but tolerated the sexually hostile environment, which environment inhibited plaintiff's ability to learn. If so, the school district was "denying [plaintiff] the benefits of" her educational program and/or "subjecting [her] to discrimination" under that program in violation of Title IX. 20 U.S.C. § 1681(a).

 A review of the case law, Rowinsky excepted, supports our position. Our starting point is Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992). As noted previously, the Supreme Court determined in Franklin that Title IX liability appertains when a teacher sexually harasses a student, the school district has actual knowledge of the teacher's conduct, but the school district fails to stop or control the harassment. Id. at 75. In doing so, the Court drew an analogy to Title VII, the federal statute which prohibits discrimination in employment. 42 U.S.C. § 2000e-2(a). The Court reasoned that just as Title VII imposes liability against an employer "'when a supervisor sexually harasses a subordinate because of the subordinate's sex,'" a cause of action under Title IX may lie against a school district when a teacher sexually harasses a student. Id. at 75, quoting Meritor Sav. Bank v Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Since Franklin, Title VII principles have repeatedly been applied to Title IX cases, at least where "Title IX prohibits the same conduct prohibited by Title VII." Bruneau v. South Kortright Central Sch. Dist., 935 F. Supp. 162, 171 (N.D.N.Y. 1996). Validation for this approach comes not only from Franklin but from the legislative history and agency interpretations which accompany Title IX.

 Among its other purposes, Title IX was enacted to fill a gap in discrimination law left by Title VII. Title VII ...


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