The opinion of the court was delivered by: Siragusa, J.
Plaintiffs assert civil rights claims against the Webster Central School District ("the District") and the Webster Board of Education ("the Board"), and a negligence claim against the District, the Board, Principal John Walker (in his individual and official capacities), and Vice-Principal Mary Kidd (in her individual and official capacities).
Defendants have moved for summary judgment (Docket No. 62), and Plaintiffs have filed a cross-motion for summary judgment (Docket No. 66). For the reasons stated below, Defendants' motion for summary judgment is granted on the civil rights claims, Plaintiffs' cross-motion is denied, and the Court declines to exercise jurisdiction over the remaining negligence claim.
Plaintiffs claim that their son, Nicholas Lopez ("Nicholas"), was racially harassed by neighbor and fellow student RM, and by his sister, AM, both in school and in the neighborhood.*fn1 In summary, Plaintiffs are suing Defendants alleging that they took either no action, or insufficient action, in the face of discrimination complaints concerning Nicholas, then a student at Webster-Thomas High School ("Webster-Thomas"). Plaintiffs contend that based upon the notice Defendants received from Nicholas' parents, and from Nicholas and a classmate, Alyssa Litto ("Alyssa"),*fn2 they should have known that Nicholas was being harassed. Defendants counter that they had no notice of any harassment prior to October 6, 2004, the date on which Nicholas punched RM three times while in school. Although both were suspended, Nicholas alleges that his suspension was longer and that he did not receive the same tutoring and homework services while he was out of school that AM, who is Caucasian, received while she was out of school. Nicholas claims that the disparate treatment was due to his Hispanic ethnicity.*fn3
Plaintiffs list three*fn4 causes of action in their amended complaint (Docket No. 15): (1) a claim of intentional discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (2) a claim pursuant to 42 U.S.C. § 1983 that Nicholas suffered a "hostile discriminatory environment" in violation of his rights under the Fourteenth Amendment; and (3) a claim that Defendants negligently failed to stop the harassment Nicholas experienced. The case was originally brought in New York State Supreme Court, Monroe County, Index No. I-2005-8843, and Defendants then removed the action to this Court.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, 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). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S
FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). W here the non-moving party will bear the burden of proof at trial, "the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Section 601 of Title VI of the Civil Rights Act of 1964 provides in pertinent part as follows:
No person in the United States shall, on the ground of race, color, or nation origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (1964). The statute prohibits intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 281 (2001) ("it is similarly beyond dispute . that § 601 prohibits only intentional discrimination.") As noted by the second Circuit Court of Appeals, "[b]ecause the statutes share the same goals and because Title IX mirrors the substantial provisions of Title VI of the Civil Rights Act of 1964, courts have interpreted Title IX by looking to the body of law developed under Title VI, as well as the caselaw interpreting Title VII." Curto v. Edmondson, 392 F.3d 502, 504 n. 3 (2d Cir. 2004) (citation and internal quotations omitted). As the Second Circuit observed in Tolbert v. Queens College, 242 F.3d 58 (2d Cir. 2001):
In order to establish a claim based on either statute, the plaintiff must show, inter alia, that the defendant discriminated against him on the basis of race, ...that that discrimination was intentional...and that the discrimination was a "substantial" or "motivating factor" for the defendant's actions....
Tolbert, 242 F.3d at 69 (quoting Gierlinger v. Gleason, 160 F.3d 858, 868 (2d Cir. 1998)) (quoting Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977)) (citations omitted).
Plaintiff Nicholas Lopez states that he is of "Hispanic origin, namely Puerto Rican." (Nicholas Lopez Aff. ¶ 2.) As the Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation on the Eleventh Circuit Court of Appeals, observed in U.S. v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005):
I have used "ethnicity" or "ethnic identity" to describe a juror's Hispanic origin wherever possible, but in some instances the case law refers to a juror's Hispanic "race." However, the Supreme Court appears to use "race" and "ethnicity" interchangeably in the Batson context, at least when discrimination against jurors of Hispanic or Latino origin is at issue. See United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000) ("Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race."). Compare Hernandez v. New York, 500 U.S. 352, 355 (1991) (plurality opinion) (stating that a Batson violation would occur if "the prosecutor in [the petitioner's] criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity"), with id. at 372, (O'Connor, J., concurring in the judgment) ("In order to demonstrate [a Batson] violation, Hernandez must prove that the prosecutor intentionally discriminated against Hispanic jurors on the basis of their race.")
U.S. v. Ochoa-Vasquez, 428 F.3d at 1052. Hispanic is also defined as, "1: of or relating to the people, speech, or culture of Spain or of Spain and Portugal; 2: of, relating to, or being a person of Latin American descent living in the United States; especially: one of Cuban, Mexican, or Puerto Rican origin."*fn5
Private Right of Action Under Title IX of Education Amendments of 1972
Plaintiffs argue that their claim to a private right of action against Defendants for being deliberately indifferent to Nicholas' harassment by fellow students is supported by the Supreme Court's holding in Davis Next Friend Lashonda D. v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). There, Justice Sandra Day O'Connor wrote about the claims that the plaintiff made under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. She wrote for the Court:
We must determine whether a district's failure to respond to student-on-student harassment in its schools can support a private suit for money damages. See Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 283 (1998) ("In this case.petitioners seek not just to establish a Title IX violation but to recover damages."). This Court has indeed recognized an implied private right of action under Title IX, see Cannon v. University of Chicago, supra, and we have held that money damages are available in such suits, Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). Because we have repeatedly treated Title IX as legislation enacted pursuant to Congress' authority under the Spending Clause, however, see e.g. Gebser v. Lago Vista Independent Schools, supra. at 287 (Title IX); Franklin v. Gwinnett County Public Schools, supra, at 74-75, and n. 8 (Title IX); see also Guardians Ass'n v. Civil Serv. Comm'n of New York City, 463 U.S. 582, 598-599 (1983) (opinion of White, J.) (Title VI), private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue. When Congress acts pursuant to its spending power, it generates legislation "much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). In interpreting language in spending legislation, we thus "insis[t] that Congress speak with a clear voice," recognizing that "[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it." Ibid.; see also id., at 24-25.
Davis, 526 U.S. at 639-40. In one of the cases cited from the quotation above, Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983), Justice White, writing for a plurality, concluded that a private right of action for disparate impact discrimination is available under Title VI, but the remedy is limited:
In the typical case where deliberate discrimination on racial grounds is not shown, the recipient will have at least colorable defenses to charges of illegal disparate-impact discrimination, and it often will be the case that, prior to judgment, the grantee will not have known or have had compelling reason to know that it had been violating the federal standards. Hence, absent clear congressional intent or guidance to the contrary, the relief in private actions should be limited to declaratory and injunctive relief ordering future compliance with the declared ...