When she did meet with a professional, Manfredi could not recall if it
was a "psychiatrist or psychologist," but did recall that the three
meetings took place in her lawyer's office after this lawsuit was filed.
(Defs Aff. Exh. D at 148-51.) Beginning in September 1998, more than two
years after she completed second grade, and a year after this lawsuit
commenced, Frances began to see a counselor at the BSB Wholistic
Psychological Center in Mt. Vernon. (Id. at 155-56.)
Grounds for the Motion
Defendants move for summary judgment on the basis that Plaintiff has
failed to raise any genuine issue of material fact from which Defendants
can be found liable under Title IX. Specifically, Defendants argue that
(1) no actionable sexual harassment took place, and (2) Plaintiff was not
deprived of access to educational opportunities. Individual Defendants
argue that, even if harassment had occurred, no cause of action can be
maintained against them under Title IX. In the alternative, they argue
that, even if a cause of action could be maintained against them, they
are entitled to qualified immunity.
Standard for Summary Judgment
Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.
See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial
exists if, based on the record as a whole, a reasonable jury could find
in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106
S.Ct. 2505. In making its determination, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. See id, at 255, 106 S.Ct. 2505. However, to defeat summary
judgment, the non-moving party must go beyond the pleadings and "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In Davis v. Monroe County Rd. of Education, 526 U.S. 629, 119 S.Ct.
1661, 143 L.Ed.2d 839 (1999), the Supreme Court held that, in some but
not all circumstances, a school district may be held liable for
student-to-student sexual harassment under the implied right of private
action under Title IX. Plaintiff argues here that the ten separate
incidents about which she and her daughter testified constituted a
pattern of sexual harassment, and that the school's failure to stop Lamar
demonstrates deliberate indifference by the school administrators and
school board. Invoking Davis, Plaintiff argues that Frances was deprived
of access to educational opportunities to which she is constitutionally
There is no dispute here that the Mount Vernon School Board receives
federal funding. The issue before the Court is whether the evidence in
the record supports a claim for denial of educational rights under Title
A school district may be liable for damages under Title IX for
student-on-student sexual harassment where:
(1) the school district is deliberately indifferent to
known acts of student-on-student sexual harassment
and the harasser is under the school's disciplinary
(2) plaintiff can show that the alleged conduct was so
severe, pervasive, and objectively offensive that it
can be said to deprive the victim of access to the
educational opportunities or benefits of the school.
Davis, 119 S.Ct. at 1675.
The Supreme Court noted in Davis that liability for "deliberate
indifference" could only be found "where the funding recipient has some
control over the alleged harassment" and that "[a] recipient cannot be
directly liable for its indifference where it lacks the authority to take
remedial remedy." Davis, 119 S.Ct. at 1672. Thus, the liability of the
funding recipient is limited
to "circumstances wherein the recipient exercises substantial control
over both the harasser and the context in which the known harassment
occurs." Id. (emphasis added). The Court found that misconduct that
occurs during school hours and on school grounds falls into the category
of conduct over which the school exercises substantial control. Id.
Davis involved a fifth-grade female student who was subjected to the
unwanted sexual advances of a fellow fifth-grade male student. The
complaint in Davis alleged that, over a period of five months, the male
student fondled the female student's breasts, spoke in vulgar language
and engaged in sexually suggestive behavior. The male student was alleged
to have made comments such as "I want to get into bed with you" and "I
want to feel your boobs." Davis 119 S.Ct. at 1666. He was also alleged to
have placed a doorstop in his pants and acted in a suggestive manner
toward the female student. The student's mother complained to the school
principal, who promised to "threaten" the male student "a bit harder."
Id. The female student was not permitted to change her seat in the class
for three months. At the end of the string of harassing incidents, the
male student was charged with, and pled guilty to, sexual battery, a
crime. Id. As a result of the harassment, the plaintiff alleged that her
grades had dropped and she had written a suicide note. The complaint also
alleged that several other girls had fallen prey to the harassing
student's conduct. Id.
The District Court in Davis held that, absent an allegation "that the
Board or an employee of the Board had any role in the harassment," the
plaintiff had failed to state a cause of action against the school board
and dismissed the case prior to discovery. See D. v. Monroe Cty. Bd. of
Educ., 862 F. Supp. 363, 367 (M.D.Ga. 1994). The court dismissed the
Title IX claims against the individual defendants on the ground that only
federal funding recipients are liable for Title IX violations. See id.
Plaintiff appealed and the Eleventh Circuit reversed, holding that a
school board could be liable for student-on-student harassment under
Title IX. See Davis v. Monroe Cty. Bd. of Educ., 74 F.3d 1186, 1193 (11th
Cir. 1996). Upon rehearing en banc, however, the Eleventh Circuit
affirmed the District Court's decision to dismiss the Title IX claim.
Davis v. Monroe Cty. Bd. of Educ., 120 F.3d 1390 (11th Cir. 1997).
The Supreme Court reversed. Justice O'Connor writing for the majority,
ruled that school boards, as recipients of Title IX funding, could be
held liable for student-on-student sexual harassment as long as it had
the effect of denying educational opportunities. The allegation that the
Monroe County School District had been on notice of the male student's
behavior and had done nothing to stop it sufficed to state a claim that
the board denied the plaintiffs educational opportunities.
Davis is a classic example of the old law school maxim that "bad facts
make bad law." What happened to the Plaintiff in Davis was horrible
— indeed, she was the victim of a crime. However, despite the best
efforts of the Supreme Court to restrict its reach, Davis will inevitably
be applied to justify lawsuits over far less heinous behavior —
like this one.
As in Davis, the conduct here took place in the classroom and hallways
of the school. The conduct of the male student here, like the conduct of
the alleged harasser in Davis, thus falls within the category of conduct
over which the school exercises substantial control. Further, the
Plaintiff has testified that Pesce and Wirchen did not take action in
response to her initial complaints about Lamar's behavior. She has thus
raised a genuine issue of whether the school authorities acted with
However, I hold that Plaintiffs claim fails because she has failed to
raise any genuine issue of material fact from which a jury could conclude
that Frances was subjected to "peer on peer sexual harassment or to
conduct that was "so severe, pervasive, and objectively offensive that it
can be said to deprive [her] of access to
the educational opportunities or benefits provided by the school."
Davis, 119 S.Ct.at 1675.
Justice O'Connor, writing for Davis majority, hypothesized that
harassment accompanied by physical threats that prevent a student from
attending school or accessing particular school resources would be a
clear example of conduct which, if known by the school administration and
deliberately ignored, might lead to a deprivation of access to
educational opportunities or benefits. See Davis, 119 S.Ct. at 1675.
Whether other gender-oriented conduct "rises to the level of actionable
`harassment,'" however, "depends on a constellation of surrounding
circumstances, expectations, and relationships.' including, but not
limited to, the ages of the harasser and the victim and the number of
individuals involved." Id. (citations omitted). Justice O'Connor
Courts, moreover, must bear in mind that schools are
unlike the adult workplace and that children may
regularly interact in a manner that would be
unacceptable among adults. Indeed, at least early on,
students are still learning how to interact
appropriately with their peers. It is thus
understandable that, in the school setting, students
often engage in insults, banter, teasing, shoving,
pushing and gender-specific conduct that is upsetting
to students subjected to it. Damages are not available
for simple acts of teasing and name-calling among
school children, however, even where these comments
target differences in gender. Rather, in the context
of student-on-student harassment, damages are
available only where the behavior is so severe,
pervasive, and objectively offensive that it denies
its victims equal access to education that Title IX is
designed to protect. Id. at 1675.
I must apply this standard to the facts of this case, viewing them most
favorably to the Plaintiff. The conduct complained of here took place
when Frances was seven years old. The boy who engaged in the alleged
harassing behavior was also seven years old. Frances testified to five
incidents of generalized "teasing" or "bothering." She has also testified
to one instance where she was pushed by Lamar, one occasion when he
punched her and one occasion when he grabbed her leg. She testified to one
instance of Lamar's pushing her friend. She has not alleged that she was
ever subjected to any sexual comments. I thus conclude that, as a matter
of law, the nine incidents that took place between November 1995 and May
23, 1996, did not constitute "sexual" harassment that denied France
"access to educational opportunities." In fact, these nine incidents did
not constitute "sexual" harassment at all, as the law understands that
term. Teasing, kicking, shoving and pokes in the face are annoying and
hurtful to any child who is victimized by them. Such behavior may even
may even leave a child quite traumatized and upset. But in Davis, Justice
O'Connor went to great pains to make clear that such conduct — even
if perpetrated by a child of one gender against a child of another gender
— is not actionable as "sexual" harassment.
Only the May 23 incident could remotely be described as "sexual."
Frances testified that Lamar touched her vagina through her clothing for
a "quick second." More colloquially, he stuck his hand between her legs.
Assuming this testimony to be true, Lamar's action could be construed
as an offensive touching.*fn4 In the employment law context, the Second
Circuit has found that a single instance of offensive touching may
constitute adult sexual harassment. See
Newsday v. Long Island Typographical Union No. 915, CWA, AFL-CIO,
915 F.2d 840, 844 (2d Cir. 1990)(citing EEOC guidelines that state
"unwelcome, intentional touching of a charging party's intimate body
areas is sufficiently offensive to alter the conditions of her working
environment . . . a single unwelcome physical advance can seriously
poison the victim's working environment"). The Davis Court cautioned
however, that while a single instance of one-on-one peer sexual
harassment might, in some circumstances, have the effect of denying the
victim equal access to education, it was "unlikely that Congress would
have thought such behavior sufficient to rise to this level in light of
the inevitability of student misconduct and the amount of litigation that
would be invited by entertaining claims of official indifference to a
single instance of one-on-one peer harassment." Davis at 1676. Thus, even
if the school had deliberately ignored Lamar's conduct (which it did
not), it would be a reach to hold the school liable under Title IX.
In this case, however, I need not decide that question because Frances
was not denied equal access to education. Frances missed only one day of
school, May 24, when she went to the police station to file a complaint
— and then only because she was kept out of school by her mother
and her uncle. As soon as Pesce and Wirchen learned of Frances' one and
only allegation about possible sexual touching, they moved her into
another class, where she thrived. At the end of the school year, Frances
was promoted to the third grade. Her mother expressed satisfaction with
Frances' grades. The child did not require medical treatment — at
least not until her mother decided to file a lawsuit. There is not a
scintilla of evidence from which a rational trier of fact could conclude
that Frances was deprived of access to even one educational opportunity
by any action that might conceivably qualify as sexual harassment.
Finally, even if that one alleged incident of inappropriate touching
perpetrated by one seven-year old against another could be construed as
rising to the level of sexual harassment, under the Davis test, the
school district cannot be liable. The evidence in the record indicates
that, as soon as Manfredi complained of the touching, steps were taken to
separate Frances from the boy. Frances was removed from Ms. Wirchen's
class and placed in Ms. Rinaldi's classroom, where she remained for the
rest of the school year. Plaintiff has simply failed to raise an issue as
to whether the school district or its employees acted with deliberate
indifference once they had actual knowledge of something other than the
teasing of the sort teachers see every day.
For the above reasons, Plaintiff has failed to make out a claim under
Title IX, and I dismiss all claims against Defendant Mount Vernon Board
Individual Defendants' Liability
Individual Defendants argue that no cause of action lies against them
in their individual capacities under Title IX. Even prior to Davis v.
Monroe, it was the law of this circuit that Title IX provided an implied
a private right of action by a student against the recipient of federal
educational funding for a denial of access to public education. See
Bruneau v. South Kortright Central School District, 163 F.3d 749, 757
(2d. Cir. 1998). The Second Circuit has never addressed whether an
individual might be held liable under a Title IX private cause of
action. However, the lower court in Davis, and the weight of authority in
Court of Appeals' decisions prior to Davis, interpreted "recipient" to
mean the institution that receives federal educational funding, not
individual employees of those institutions. See Soper v. Hoben,
195 F.3d 845, 854 (6th Cir. 1999); Kinman v. Omaha Pub. School Dist.,
171 F.3d 607, 611 (8th Cir. 1999): Smith v. Metropolitan School Dist.,
128 F.3d 1014, 1019-1020 (7th Cir. 1997), cert. denied, 524 U.S. 951, 118
S.Ct. 2367, 141 L.Ed.2d 736 (1998); D. v. Monroe Cty. Rd. of Educ.,
862 F. Supp. 363, 367 (M.D.Ga. 1994).
The Supreme Court's decision in Davis extended liability for
peer-on-peer sexual harassment under Title IX to the institutional aid
recipient, not to the employees of the recipient, and thus implicitly
adopted the interpretation already being applied by the lower courts. See
Davis, 119 S.Ct. at 1669-1670 (citing National Collegiate Athletic Assn.
v. Smith, 525 U.S. 459, 119 S.Ct. 924, 929 n. 5, 142 L.Ed.2d 929
(1999))(rejecting suggestion "that the private right of action available
under . . . § 1681(a) is potentially broader than the Government's
enforcement authority"); See also Niles v. Nelson, 72 F. Supp.2d 13, 17
(N.D.N.Y. 1999)(noting that all circuits and all but one of the district
courts to address the issue have held that individuals may not be liable
under Title IX) (citations omitted). I therefore conclude that Pesce and
Wirchen cannot be held liable for their actions under Title IX and I
dismiss the claims against them on that basis.
Because no cause of action can be maintained against them under Title
IX, and because there was no sexual harassment, I need not address the
issue of whether the Individual Defendants might be entitled to qualified
Having dismissed all of Plaintiffs federal claims, I decline to
exercise jurisdiction over Plaintiffs pendent state claim.
In deciding this case, I was reminded of the prescient warning that
came out of the Davis case:
The Court clears the way for the federal government to
claim center stage in America's classrooms. Today's
decision mandates to teachers instructing and
supervising their students the dubious assistance of
federal court plaintiffs and their lawyers and makes
the federal courts the final arbiters of school policy
and of almost every disagreement between students.
Enforcement of the federal right recognized by the
majority means that federal influence will permeate
everything from curriculum decisions to day-to-day
classroom logistics and interactions. After today,
Johnny will find that the routine problems of
adolescence are to be resolved by invoking a federal
right to demand assignment to a desk two rows away.
Davis, 119 S.Ct. at 1691-92 (1999).
These words, however, come not from the majority opinion, but from
Justice Kennedy's dissent. His vision was rejected by the majority as
unlikely to occur. See Davis, 119 S.Ct. at 1675-76. As it turns out, he
I am, of course, bound by the Davis Court's majority view that Title IX
creates a private right of action against a school board for student
peer-to-peer sexual harassment. Fortunately, Justice O'Connor tried to set
a high bar for liability, and I am thus able do the right thing and
dispose of this case before trial. But the fact that Davis was on the
books also ensured that this case, involving an unruly little boy and a
sensitive little girl — and nothing "sexual" as adults understand
that term — would (and did) survive a pre-discovery motion to
dismiss. A young girl was subjected to hours of questioning about painful
childhood taunts and teasing. And countless hours of school resources
(not to mention taxpayer funds) were expended because the floodgates of
federal litigation in the schoolroom and the school-yard have been
opened. Surely, such a use of educational and judicial resources
diminishes the real gains in educational opportunities for women and
girls that have been brought about as a result of Title IX.
This constitutes the decision and order of this Court.