The opinion of the court was delivered by: KNAPP
WHITMAN KNAPP, SENIOR D.J.
This is an action brought under Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681, et seq ("Title IX") against defendant New York University for sexual harassment alleged to have been suffered from a professor.
The university moves for summary judgment on two grounds: (1) The facts are such that the university can't be held liable for the conduct of its professor; and (2) plaintiff Jennifer Miles is not protected under Title IX because, although admitted to the school as a female and at all relevant times treated as such, plaintiff is in fact a male-to-female transsexual who, at the time of the professor's alleged conduct, was in the process of becoming a female.
For reasons which follow, we reject both of defendant's positions.
For the purposes of this motion we accept as true all facts alleged in the complaint and asserted by plaintiff in affidavits opposing the motion. Plaintiff began a program of graduate studies in musicology at defendant New York University ("NYU") in September, 1990. Among the professors under whom plaintiff studied was one Cliff Eisen, with whom she was assigned a series of one-on-one tutorial sessions.
Plaintiff claims that in February, 1993, Professor Eisen began making wholly unwelcome sexual advances during these sessions. The advances included the fondling of breasts, buttocks, and crotch, forcible attempts to kiss, and repeated propositioning for a sexual relationship.
In March, 1993 plaintiff lodged a written complaint against Professor Eisen with NYU's Sexual Harassment Committee. In response to this complaint, NYU served a written reprimand upon Professor Eisen, though he was permitted to continue teaching at the graduate and undergraduate levels. The university later assured Eisen that the written reprimand would have no effect on a decision to award him tenure. This assurance is particularly bizarre in light of the existence of additional complaints that had been filed prior to plaintiff's complaint by four other female students regarding inappropriate sexual advances by Professor Eisen.
After reviewing these four prior complaints of improper conduct, NYU's Sexual Harassment Advisory Committee had requested that certain deans investigate a possible pattern of harassment in the music department. In response to this request, the deans took no action to effectuate an inquiry and did not even approach Professor Eisen to discuss the allegations.
It is further claimed that after plaintiff filed formal grievances with the harassment committee, plaintiff was treated in a hostile fashion by professors and administrators at NYU. As a result of this harsh treatment, plaintiff prematurely left the doctoral program. Plaintiff continues to suffer from mental distress, anguish, and pain due to defendant's alleged misfeasance.
A. Defendant's claim that it is not responsible for Professor Eisen's Conduct
As we observed at oral argument, any jury that accepted as true all facts claimed by plaintiff would surely find in her favor on this issue.
B. Cause of Action Under Title IX
Title IX provides in relevant part that "No person in the United States shall, on the basis of sex...be subjected to discrimination under any education program or activity receiving Federal financial assistance..." 20 U.S.C. § 1681(a). The issue before us is whether Title IX protects a biological male who has been subjected to discriminatory conduct while perceived as female.
The simple facts are, as the university was forced to admit, that Professor Eisen was engaged in indefensible sexual conduct directed at plaintiff which caused her to suffer distress and ultimately forced her out of the doctoral program in her chosen field. There is no conceivable reason why such conduct should be rewarded with legal pardon just because, unbeknownst to Professor Eisen and everyone else at the university, plaintiff was not a biological ...