120 F.3d 1390 (11th Cir. 1997), 94-9121, Davis v. Monroe County Bd. of Educ.

Docket Nº:94-9121.
Citation:120 F.3d 1390
Party Name:Aurelia DAVIS, as Next Friend of LaShonda D., Plaintiff-Appellant, v. MONROE COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.
Case Date:August 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1390

120 F.3d 1390 (11th Cir. 1997)

Aurelia DAVIS, as Next Friend of LaShonda D., Plaintiff-Appellant,

v.

MONROE COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.

No. 94-9121.

United States Court of Appeals, Eleventh Circuit

August 21, 1997

Page 1391

Mary Patricia Sullivan, Macon, GA, Marcia Greenberger, Verna Williams, Deborah Brake, The National Women's Law Center, Washington, DC, for Plaintiff-Appellant.

Julie Goldscheid, New York City, for Amicus Now Legal Defense & Education Fund.

Wallace Warren Plowden, Jr., William T. Prescott, Macon, GA, for Defendants-Appellees.

Dennis J. Dimsey, Mark L. Gross, Linda F. Thome, U.S. Dept. of Justice, Washington, DC, for Amicus U.S. Department of Justice.

Appeal from the United States District Court for the Middle District of Georgia.

Before HATCHETT, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges [*], and KRAVITCH [**] and HENDERSON, Senior Circuit Judges.

Page 1392

TJOFLAT, Circuit Judge:

Appellant, Aurelia Davis, brought this suit against the Board of Education of Monroe County, Georgia, (the "Board") and two school officials, Charles Dumas and Bill Querry, on behalf of her daughter, LaShonda Davis. The complaint alleged that the defendants violated section 901 of the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as amended at 20 U.S.C. § 1681 (1994)) ("Title IX"), and 42 U.S.C. § 1983, 1 by failing to prevent a student at Hubbard Elementary School ("Hubbard") from sexually harassing LaShonda while she was a student there. Appellant separately alleged that the defendants discriminated against LaShonda on the basis of race in violation of 42 U.S.C. § 1981. 2 Appellant sought injunctive relief and $500,000 in compensatory and punitive damages.

The district court dismissed appellant's complaint in its entirety for failure to state a claim upon which relief can be granted. See Aurelia D. v. Monroe County Bd. of Educ., 862 F.Supp. 363, 368 (M.D.Ga.1994); see also Fed.R.Civ.P. 12(b)(6). Appellant appealed the district court's dismissal of her Title IX claim against the Board, 3 arguing that a school board can be held liable under Title IX for its failure to prevent sexual harassment among students. On appeal, a divided three-judge panel reinstated her Title IX claim against the Board. See Davis v. Monroe County Bd. of Educ., 74 F.3d 1186, 1195 (11th Cir.1996). At the Board's request, we granted rehearing en banc to consider appellant's Title IX claim, 4 and we now affirm the district court's dismissal of this claim.

Page 1393

I.

A.

We review de novo the district court's dismissal of appellant's complaint for failure to state a claim upon which relief can be granted. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir.1996). To this end, we take as true the allegations appellant has set forth in her complaint and examine whether those allegations describe an injury for which the law provides relief. See Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir.1995). We construe appellant's allegations liberally because the issue is not whether appellant will ultimately prevail but whether she is entitled to offer evidence to support her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). We begin by describing the allegations contained in appellant's complaint.

B.

LaShonda Davis was enrolled as a fifth-grade student at Hubbard during the 1992-1993 school year. During that school year, Bill Querry was the principal of Hubbard, and Diane Fort, Joyce Pippin, and Whit Maples were teachers at the school. The complaint alleges that the Board administered federally funded educational programs at Hubbard and supervised the school's employees, including Principal Querry and Teachers Fort, Pippin, and Maples.

According to the complaint, a fifth-grade student named "G.F." was in several of LaShonda's classes and initially was assigned to the seat next to LaShonda in Fort's classroom. On December 17, 1992, while in Fort's classroom, G.F. allegedly tried to touch LaShonda's breasts and vaginal area. G.F. also allegedly directed vulgarities at LaShonda, such as "I want to get in bed with you" and "I want to feel your boobs." LaShonda complained to Fort. After school that day, LaShonda also told her mother, the appellant, about G.F.'s behavior. The complaint states that G.F. engaged in similar (although unspecified) conduct on or about January 4, 1993, 5 and again on January 20, 1993. LaShonda allegedly reported both incidents to Fort and to appellant. After one of these first three incidents, appellant called Fort, who told appellant in the course of their conversation that Principal Querry knew about one of the incidents.

G.F.'s misconduct continued. On February 3, 1993, G.F. allegedly placed a door-stop in his pants and behaved in a sexually suggestive manner toward LaShonda during their physical education class. LaShonda reported this incident to Maples, who was the physical education teacher. On February 10, 1993, G.F. engaged in unspecified conduct similar to that of the December 17 incident in the classroom of Pippin, another of LaShonda's teachers. LaShonda notified Pippin of G.F.'s behavior and later told appellant, who then called Pippin to discuss the incident. On March 1, 1993, G.F. directed more unspecified, offensive conduct toward LaShonda during physical education class. LaShonda reported G.F. to Maples and Pippin. An unidentified teacher allegedly told LaShonda that Principal Querry was not ready to listen to her complaint about G.F.

At some point around March 17, 1993, Fort allowed LaShonda to change assigned seats away from G.F. G.F., however, persisted in his unwelcome attentions. On April 12, 1993, he rubbed his body against LaShonda in a manner she considered sexually suggestive; this incident occurred in the hallway on the way to lunch. LaShonda again complained to Fort.

Lastly, on May 19, 1993, LaShonda complained to appellant after school about more unspecified behavior by G.F. Appellant and LaShonda then paid a visit to Principal Querry to discuss G.F.'s conduct. At this meeting, Querry asked LaShonda why no other students had complained about G.F. During this meeting, Querry also told appellant, "I guess I'll have to threaten [G.F.] a little bit

Page 1394

harder." On the same day, May 19, G.F. was charged with sexual battery, a charge which he apparently did not deny. The complaint does not tell us who summoned the police.

In all, the complaint describes eight separate instances of sexual harassment by G.F. These eight instances of alleged harassment occurred, on average, once every twenty-two days over a six-month period. Three instances occurred in Fort's classroom; two occurred in Maples' physical education class; one occurred in Pippin's classroom; one occurred in a school hallway; and one occurred in an unspecified location. LaShonda reported four instances of alleged harassment to Fort, two to Maples, and two to Pippin. LaShonda reported the final instance of harassment, the May 19 incident, to appellant and Querry. The complaint does not allege that any faculty member knew of more than four instances of harassment, and the complaint indicates that Principal Querry learned of only one instance of harassment before his meeting with appellant and LaShonda on May 19.

The complaint does not state what action each of the teachers took upon being informed by LaShonda of G.F.'s demeaning conduct. We assume for appellant's benefit that the teachers took no action other than Fort's apparent notification of Principal Querry after one of the first three instances of alleged harassment and Fort's decision around March 17, 1993, to move LaShonda's assigned seat away from that of G.F. We will also accept as true that Principal Querry took no measures against G.F. other than threatening him with disciplinary action at some point before his May 19 meeting with appellant and her daughter. For example, we assume for appellant's benefit that someone other than the school staff instigated the prosecution of G.F.

Appellant claims that LaShonda suffered mental anguish because of G.F.'s behavior. As indicia of this emotional trauma, the complaint states that LaShonda's grades dropped during the 1992-1993 school year and that LaShonda wrote a suicide note in April 1993. Based on the above allegations, appellant contends that "[t]he deliberate indifference by Defendants to the unwelcomed [sic] sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and abuse [sic] school environment in violation of Title IX." We therefore consider whether Title IX allows a claim against a school board based on a school official's failure to remedy a known hostile environment 6 caused by the sexual harassment of one student by another ("student-student sexual harassment").

II.

Title IX provides that "[n]o 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 (1994). Although nothing in the plain language of Title IX speaks to the issue of student-student sexual harassment, several district courts have held that Title IX allows a student to sue a school board for failing to prevent hostile-environment sexual harassment by another student. See Doe v. Londonderry Sch. Dist., 970 F.Supp. 64 (D.N.H.1997); Nicole M. v. Martinez Unified Sch. Dist., 964 F.Supp. 1369, 1372-78 (N.D.Cal.); Collier v. William Penn Sch. Dist., 956 F.Supp. 1209, 1213-14 (E.D.Pa.1997); Bruneau By and Through Schofield v. South Kortright Cent. Sch. Dist...

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