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July 24, 1996

EVA BRUNEAU, a Minor, by and through her Guardian ad litem, Pat Schofield, Plaintiff,

The opinion of the court was delivered by: MCAVOY


 The Plaintiff, Eva Bruneau, was a student in the sixth grade at South Kortright Central School District. Pat Schofield, the Plaintiff's mother, was appointed her guardian ad litem for the purposes of this suit by this Court's Order dated December 22, 1994. The Defendants are: South Kortright Central School (hereinafter "SKCS"), a public school which receives Federal financial assistance; Lynda Race, an assistant superintendent of the school; William Parker, the Plaintiff's former sixth grade teacher; and the South Kortright Central School Board.

 I. Procedural Background

 The Plaintiff's original claim, filed on July 13, 1994, asserted a cause of action against the Defendants for a violation of 20 U.S.C. § 1681 (hereinafter "Title IX"), 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution. On September 14, 1994, the Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or alternatively for summary judgment Pursuant to Fed. R. Civ. P. 56. In an Order dated December 22, 1994, this Court, inter alia : (1) granted the Defendants' motion to dismiss the Title IX claims against the individual Defendants Mr. Parker, Mrs. Race and Mr. Thompson; (2) denied the Defendants' motion to dismiss the Title IX claims against SKCS and the SKCS Board of Education; (3) denied the Defendants' motion to dismiss the 42 U.S.C. § 1983 claims; (4) granted the Defendants' motion to dismiss the 42 U.S.C. § 1983 claim against SKCS and the SKCS Board only in regard to school policy and custom but granted the plaintiff 30 days in which to amend her complaint; (5) granted the Defendants' motion to dismiss the 42 U.S.C. § 1983 claims against individual Defendant Mr. Thomson; and (6) denied the Defendants' motion for summary judgment in its entirety.

 On December 27, 1994, the Plaintiff filed her Amended Complaint. The Plaintiff asserts that Title IX supports a claim where supervising authorities, such as faculty members, administrators or school board members, knowingly fail to act to remedy a sexually hostile learning environment created by fellow students. The Plaintiff claims that a Title IX claim should be governed by the same judicial standards applicable to 42 U.S.C. § 2000e-2(a) (hereinafter "Title VII") relating to an employer's toleration of a sexually hostile working environments created by employees.

 On June 6, 1996, the Defendants moved for summary judgment against the Plaintiff's Amended Complaint. They contend that Title VII analysis is not applicable to a Title IX claim where the sexually hostile learning environment was created by a student's peers.

 ii. The Plaintiff's Case

 The Plaintiff alleges that she and other girls in her class were subjected to verbal and physical sexual harassment beginning in September, 1993, until she was forced to transfer from SKCS on March 1, 1994. The Plaintiff claims that such sexual harassment made her feel unsafe and depressed. Bruneau Aff'd at 1-2. Additionally, the harassment created an intimidating, abusive and hostile learning environment which interfered with her education. Id. The Plaintiff and other girls were often referred to as "lesbian", "prostitute", "retard", "scum", "bitch", "whore" and "ugly dog faced bitch." Plaintiff's Counter-Statement of Disputed Material Facts at 2. The physical harassment included the boys; snapping the girls' bras, running their fingers down the girls' backs, stuffing paper down the girls' blouses, cutting the girls' hair, grabbing the girls' breasts, spitting, shoving, hitting and kicking. Bruneau Aff'd. at 1-5.

 Additionally, the Plaintiff alleges that Mr. Parker favored his male students by assisting, inviting, and encouraging them to participate in certain projects and activities in the classroom while not inviting or encouraging, even discouraging, the girls participation. Id. at 8-9. As examples, the Plaintiff recounts that Mr. Parker assisted only the boys in making Indian headdresses and turkey calls. When the Plaintiff asked if she could participate in the activity she states that Mr. Parker handed her a straw and told her to "suck on this instead." Id. Additionally, the Plaintiff asserts that the boys' closet had more storage space than the girls and that Mr. Parker brought in hunting, sports, and gun magazines for the boys but nothing for the girls. Id. at 9. Mrs. Schofield informed Mrs. Race on November 19, 1993, that she felt that Mr. Parker's room was male-oriented. Schofield Aff'd. at 7.

 iii. The Defendants' Case

 The Defendants contend that neither the Plaintiff nor her parents gave the school adequate notice of the alleged sexual harassment. Defendant's Memorandum of Law at 8. The Defendants do not contest that Mrs. Schofield made two verbal complaints to Mr. Parker concerning alleged peer sexual harassment on or about November 3, 1993, and November 10, 1993. Defendants' Statement of Uncontested Facts at P 12. Yet, each complaint allegedly related to the same incident. That incident involved a male student calling the Plaintiff a "dog faced bitch." Id.

 Mr. Parker contends that, other than the Plaintiff's complaint filed with this Court, he has "never heard Eve Bruneau, Pat Schofield, or any other student or parent allege that there was sexual harassment occurring in my class room." Parker Aff'd at 11, 15. He did not observe any sexual activity between any children and does not believe that sexual harassment occurred in his classroom. Id. at 15-16. Mr. Parker contends that, "there was no situation of which I am aware where I did not address a student's misbehavior when it was brought to my attention." Id. at 16. Additionally, during the November 16, 1993, meeting neither the Plaintiff nor the other girls in his class informed him that they felt they were being sexually harassed. Id. Mr. Parker recounts that the only episodes of mistreatment by the male classmates alleged by the girls included not allowing them to play on the playground, the boys not participating with them in various playground activities, pushing, and shoving. Id. Mr. Parker stated that," things such as pushing and shoving, horseplay and the like, are typical sixth grade behavior." Id.

 The Defendants do not contest that Mrs. Schofield made complaints to Mrs. Race concerning alleged sexual harassment on November, 1993, and March 25, 1994. Plaintiff's Statement of Uncontested Facts P 13. It should be noted that the March 25, 1994, complaint was made only one day prior to the Plaintiff's transfer from SKCS. Id. Additionally, Mrs. Race denies receiving any complaint from the Plaintiff concerning any acts of alleged sexual harassment at any time during the 1993-1994 school year until the March 25, 1994, meeting. Race Aff'd. at PP 17, 20. Mrs. Race claims that her November, 1993, meetings with Mrs. Schofield were primarily concerned with the school district's discontinuance of the accelerated mathematics program. Id. at P 21. During the course of that meeting, Mrs. Schofield did bring to Mrs. Race's attention the incident in which the Plaintiff was referred to as an "ugly dog faced bitch" and that the Plaintiff had been excluded from several class projects including the Indian headdress and turkey call project. Id. at P 22, 23. Mrs. Race contends Mrs. Schofield asked her to address these problems and Mrs. Race allegedly complied. Id. at PP 22, 24, 26. Mrs. Race claims that nothing further was asked of her. Id. Finally, Mrs. Race denied that she ever disregarded or ignored any complaints made by the Plaintiff, her mother or anyone else in regard to alleged sexual harassment. Id. at P 16.

 The Defendants contend that the Plaintiff at no time made or filed any written complaint alleging that the acts of sexual harassment perpetrated by fellow students were ignored by school district officials, Id. at P 11, nor filed a complaint pursuant to SKCS's Title IX policy during the time frame referenced by the Plaintiff's complaint. Id. at P 8.


 The Defendants contend that Title VII analysis is not applicable to a Title IX claim where a sexually hostile learning environment was created by a student's peers. In the alternative, the Defendants argue that, even if Title IX did apply, they did not receive adequate notice of the harassment. Finally, in regard to the individual Defendants Mr. Parker and Mrs. Race, the Defendants argue that they are entitled to protection from a 42 U.S.C. § 1983 suit based on qualified immunity. Consequently, the Defendants move pursuant to Fed. R. Civ. P. 56 for summary judgment.

 The Plaintiff claims that their Title IX claim should be governed by the same legal standards applicable to Title VII regarding an employer's toleration of a sexually hostile working environment created by employees. In this vein, the Plaintiff asserts that the Defendants' liability for a hostile learning environment is predicated on findings that a prima facie hostile environment existed and that the Defendants knowingly failed to act to remedy it. Additionally, the Plaintiff asserts 42 U.S.C. § 1983 claims based on the alleged Title IX violation. Finally, the plaintiff asserts that the Defendants' do not have qualified immunity from 42 U.S.C. § 1983 because the right of a student to be free from a hostile environment created by peer-on-peer sexual harassment is well settled under Title IX.

 A. Standard For Summary Judgment

 A motion for summary judgment should be granted "if the pleadings... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether a genuine issue of material fact has been raised, not only must there be no genuine issue as to the evidentiary facts, but there also must be no controversy regarding the inferences to be drawn from them. Bennett v. New York City Dept. of Corrections, 705 F. Supp. 979, 982 (S.D.N.Y. 1989).

 Once the moving party has satisfied her burden, the nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). When "considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial." Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994), quoting C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983)). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

  Where a Title VII Defendant's intent is at issue, summary judgment is generally inappropriate. *fn1" Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). "The showing the plaintiff must make as to the elements of the prima facie case [of discrimination] in order to defeat a motion for summary judgment is de minimis." Dortz v. City of New York, 904 F. Supp. 127, 150 (S.D.N.Y. 1995), citing Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 203-04 (2d Cir. 1995).

In determining whether the plaintiff has met the de minimis initial burden of showing "circumstances giving rise to an inference of discrimination," the function of the court on a summary judgment motion is to determine whether the "proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn."

 Id., citing Cronin, 46 F.3d at 204. With these standards in mind, the Court now turns to the issues presented.

 B. 20 U.S.C. § 1681 et seq. (Title IX)

 As with any statute, our starting point in determining the scope of Title IX is the statutory language. Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501, 504 (1995). Title IX states, in relevant 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..." 20 U.S.C. § 1681(a). The purpose of Title IX is to protect individuals from sex discrimination by denying federal financial aid to those institutions that bear responsibility for sexually discriminatory practices. Cannon v. Univ. of Chicago, 441 U.S. 677, 704 n.36, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979), citing 117 Cong. Rec. 39252 (1971). The Supreme Court has determined that a private right of action is implied under Title IX, and in addition to the availability of injunctive and declaratory relief, monetary damages are also available for intentional violations of Title IX. Id., at 709; Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S. Ct. 1028, 1038, 117 L. Ed. 2d 208 (1992), *fn2" see also Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir 1995).

 1. Application of Title VII Jurisprudence to Title IX Claim

 The Defendants assert that Title VII jurisprudence is not applicable to a Title IX claim. Rather, the Defendants claim that there can be no Title IX liability unless the Plaintiff can show that the Defendants responded differently, ceteris paribus, to complaints of sexual harassment from male and female students. Alternatively, the Plaintiff argues that Title VII jurisprudence provides the appropriate legal standards for analyzing a Title IX claim. More particularly, the Plaintiff seems to claim that the Court should apply Title VII's legal test for determining if there is a "hostile work environment" to determine if there is a "hostile learning environment," and thus, liability under Title IX. For the following reasons this Court rejects the Defendants' argument, and holds that Title VII legal standards apply to an analysis of Title IX claims.

 A considerable body of case law instructs that when analyzing a Title IX claim courts should apply Title VII jurisprudence. Franklin, 503 U.S. at 73-76 ("the same rule [as when a supervisor sexually harasses a subordinate under Title VII] should apply when a teacher sexually harasses and abuses a student."); Murray, 57 F.3d at 249 ("In reviewing claims of discrimination brought under Title IX by employees, whether for sexual harassment or retaliation, courts have generally adopted the same legal standards that are applied to such claims under Title VII."); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186, 1190 (11th Cir. 1996) (Title VII standards governing hostile working environment applicable to Title IX claim against school for knowingly failing to act to remedy hostile school environment); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993) (Title VII provides "the most appropriate analogue when defining Title IX's substantive standards."); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) (Title VII standard for proving discriminatory treatment applies to claims arising under equal protection clause and Title IX); see also, Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994) (In the case of gender discrimination occurring in college disciplinary proceedings, courts should interpret Title IX by looking to the body of law developed under Title VI, as well as the case law interpreting Title VII).

 The Second Circuit has determined that "the [Supreme] Court's citation of Meritor Savings Bank, F.S.B. v. Vinson3, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), a Title VII case, in support of Franklin's *fn4" central holding indicates that, in a Title IX suit for gender discrimination based on sexual harassment of a student, an educational institution may be held liable under standards similar to those applied under Title VII." *fn5" Murray 57 F.3d at 249 (emphasis added). In addition, the Tenth-Circuit has stated "because Title VII prohibits the identical conduct prohibited by Title IX, i.e., sex discrimination, we regard it as the most appropriate analogue when defining Title IX's substantive standards..." *fn6" Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir. 1987), cert. denied, 484 U.S. 849, 98 L. Ed. 2d 104, 108 S. Ct. 148 ...

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