to an analysis of Title IX claims, the Court is not holding that the entirety of Title VII jurisprudence must be applied to Title IX. Rather, a Court must determine the appropriate segments and the proper extent to which the law of Title VII applies to a given Title IX analysis. Title VII jurisprudence is a guide, and a Court should not blindly apply Title VII to determine the issues raised in a Title IX case.
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
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."
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..."
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 (1987). Thus, to the extent that Title IX prohibits the same conduct prohibited by Title VII, this Court may apply the legal standards from Title VII to guide its analysis of the instant Title IX claim.
2. Peer-on-Peer Sexual Harassment
Although the Second Circuit has applied Title VII jurisprudence to an analysis of a Title IX claim for sexual harassment between a teacher and a student, Murray, 57 F.3d at 249, citing, Meritor, 477 U.S. at 64, it has not directly addressed the issue of whether Title VII analysis is appropriate, in toto, where a Plaintiff seeks to impose liability, under Title IX, on an educational institution for a hostile learning environment created by peer-on-peer sexual harassment.
As pointed out by the Plaintiff, Title VII principles impose liability on employers for knowingly failing to act to remedy a hostile working environment created by sexual harassment between co-workers. The Plaintiff's Brief in Response to Defendants' Motion for Summary Judgment at 10-13, citing Franklin, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208; Davis, 74 F.3d 1186; Murray, 57 F.3d 243; Brown v. Hot Sexy and Safer Productions, Inc., 68 F.3d 1186 (11th Cir. 1996); Patricia H. V. Berkeley Unified Sch. Dist., 830 F. Supp. 1288 (N.D. Cal. 1993); Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006 (W.D. Mo. 1995)). The Plaintiff argues that because Title VII jurisprudence has been held to apply to analyses of Title IX claims generally, educational institutions should also be liable, just as employers under Title VII, for knowingly failing to act to remedy a hostile learning environment created by peer-on-peer sexual harassment. Id. The Plaintiff further argues that institutional liability for peer-on-peer sexual harassment is based on agency principles and agency principles support a finding that constructive notice of peer-on-peer sexual harassment is sufficient to establish institutional liability. Id. At 14-17 (The Plaintiff relies on Title VII cases to support this proposition arguing that "no rationale justifies distinguishing schools from the workplace in assessing institutional liability.").
The Defendants argue that the peer-on-peer situation in a classroom is very different from the employee/employee or employer/employee situation in the workplace. The Defendants' Brief Reply at 1-3. Title VII proscribes actions by adults, rather than children, and arises in an agency relationship. Id. Both of the aforementioned characteristics of a Title VII claim, according to the Defendants, are absent in the school setting. This is particularly true in the context of a hostile learning environment created by peer-on-peer sexual harassment. Accordingly, the Defendants urge the Court, at a minimum, to apply some modified version off Title VII.
Title VII requires employers to take steps to assure their employees a work environment free from sexual harassment, regardless of whether the harassment or hostile environment is caused by a supervisor or other co-workers. Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994) cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994); see also Davis, 74 F.3d at 1193-1194 (Title IX requires an educational institution to take action to remedy a hostile environment created by peer-on-peer sexual harassment). When an employer fails to act to remedy a hostile environment created by co-workers the employer discriminates against an individual in violation of Title VII. Id. Similarly, the Court finds that in the Title IX context, when an educational institution fails to take steps to remedy peer-on-peer sexual harassment, it should be held liable to the harassed student for that discriminatory conduct.
Just as a working woman should not be required to "run a gauntlet of
sexual abuse in return for the privilege of being allowed to work and make a living," Meritor, 477 U.S. at 67, a female student should not be required to run a gauntlet of sexual abuse in return for the privilege of being allowed to obtain an education.
Davis, 74 F.3d at 1194.
"A student should have the same protection in school that an employee has in the workplace." Davis 74 F.3d at 1192-1193, citing, Franklin, 112 S. Ct. at 1037. Moreover, "as economically difficult as it may be for adults to leave a hostile workplace, it is virtually impossible for children to leave their assigned school." Davis, 74 F.3d at 1193. "A sexually abusive environment inhibits, if not prevents, the harassed student from developing her full intellectual potential and receiving the most from the academic program." Id., citing Patricia H. v. Berkeley Unified Sch. Dist., 830 F. Supp. 1288, 1293 (N.D. Cal. 1993).
Yet, "importing a theory of discrimination from the adult employment context into a situation involving children is highly problematic." Rowinsky, 80 F.3d at 1011. "At a theoretical level, the problem with sexual harassment is 'the unwanted imposition of sexual requirements in the context of unequal power.'" Id. citing Catherine MacKinnon, SEXUAL HARASSMENT OF WORKING WOMEN. 1 (1979). In the context of unwanted peer-on-peer sexual harassment such a power relationship does not exist. "Unwanted sexual advances of fellow students do not carry the same coercive effect or abuse of power as those made by a teacher, employer or co-worker." Rowinsky, 80 F.3d at 1011.
Therefore, the issue remains under what parameters a Court may find an educational institution to be liable for failing to act to remedy a hostile learning environment created by peer-on-peer sexual harassment. In other words, to what extent must the institution (and the school board in this case) be on notice of the alleged ongoing harassing conduct, i.e., must notice be actual, or may notice be constructive, for Title IX liability to attach.
Title VII jurisprudence applies an actual and constructive notice standard for determining if an employer knowingly failed to act to remedy a hostile working environment created by peer-on-peer harassment. See Karen Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996); Equal Employment Opportunity Commission v. A. Sam & Sons Produce Co., Inc., 872 F. Supp. 29, 34 (W.D.N.Y. 1994).
Constructive notice is a substitute for actual notice and will be found to exist "where a defective condition has existed for such a length of time that knowledge thereof should have been acquired in the exercise of reasonable care." Fiorella v. Caleminis, 1996 WL 288471 *3 (E.D.N.Y.). This is, in essence, a negligence standard. See Doe, 830 F. Supp. at 1576. For the reasons stated below, this Court finds that to establish a Title IX claim for a hostile learning environment created by peer-on-peer sexual harassment the Plaintiff must show that the school and/or school board received actual notice of the sexual harassing conduct and failed to take action to remedy it. Liability will not lie if the Plaintiff can show only constructive notice.
As stated above, Title IX analysis is guided by Title VI and Title VII jurisprudence "only to the extent that the language and history of Title IX do not suggest a contrary interpretation." Mabry, 813 F.2d 311. The reasoning for applying constructive notice to Title VII claims arises out of agency principles. See Meritor, 106 S. Ct. at 2407-2408. In Meritor, the Supreme Court stated that they "agree with the EEOC
that Congress wanted courts to look to agency principles for guidance in [the Title VII] area." Id. at 2408. Therefore, liability for a hostile work environment created by a co-worker may be imputed to an employer even though the employer possesses no direct knowledge of the hostile environment because the co-worker is an agent of the employer.
Although an employee is an agent of an employer, a student, of an educational institution is not, per se, an agent of that institution.
(1) Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. (2) The one for whom action is to be taken is the principal. (3) The one who is to act is the agent.
Restatement (Second) of Agency § 1 (1957).
"Agency is a legal concept which depends upon the existence of required factual elements: the manifestation by the principal that the agent shall act for him, the agent's acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking." Restatement (Second) of Agency § 1 cmt. d (1957). Students, per se, are not agents of the schools which they attend. In order for agency principles to attach between a student and their school there must be some manifestation of consent by the student to the school that the student shall act on the school's behalf and subject to the school's control, as well as, consent from the school to the student's actions. The Plaintiff has not alleged, nor provided any evidence, that the harassing students were acting on behalf of or with authority from SKCS. Therefore, although constructive notice principles properly attach between employer and employee in the Title VII context, they do not attach between the alleged harassing student and the Defendants' in this Title IX case. See Rowinsky, 80 F.3d at 1011, n.11.
4. Title VII's Criteria Applied to Hostile Learning Environment
It is now well established that two forms of sexual harassment violate Title VII's prohibitions against workplace inequality: 1) quid pro quo and 2) hostile work environment harassment. Tomka v. Seiler Corp., 66 F.3d 1295, 1304-05 (2d Cir. 1995); see Meritor, 477 U.S. at 73 (recognizing that a claim of hostile environment sex discrimination is actionable under Title VII"). It is the "hostile environment" category that is implicated in this case.
Under Title VII, in order to survive a motion for summary judgment the Plaintiff must establish a establish a prima facie case of sexual harassment
resulting in the creation of a hostile work environment. In this vein, a Title VII Plaintiff must demonstrate that:
(1) she belongs to a protected group; (2) she was the subject of unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the sexual harassment affected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action.
Fair v. Guiding Eyes for the Blind, Inc., 742 F. Supp. 151, 155 (S.D.N.Y. 1990), citing, Meritor, 477 U.S. at 63-69. Similarly, a Title IX Plaintiff must demonstrate that:
(1) she is a member of a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of her education and create an abusive educational environment; and (5) some basis for institutional liability has been established.