128 F.3d 1014 (7th Cir. 1997), 95-3818, Smith v. Metropolitan School Dist. Perry Tp.

Docket Nº:95-3818.
Citation:128 F.3d 1014
Party Name:Heather SMITH, and her parents Sharon Smith and John Smith, Plaintiffs-Appellees, v. METROPOLITAN SCHOOL DISTRICT PERRY TOWNSHIP, Board of Metropolitan School District Perry Township, Lloyd Bodie, Principal of Southport High School, et al., Defendants-Appellants.
Case Date:October 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1014

128 F.3d 1014 (7th Cir. 1997)

Heather SMITH, and her parents Sharon Smith and John Smith,

Plaintiffs-Appellees,

v.

METROPOLITAN SCHOOL DISTRICT PERRY TOWNSHIP, Board of

Metropolitan School District Perry Township, Lloyd

Bodie, Principal of Southport High

School, et al., Defendants-Appellants.

No. 95-3818.

United States Court of Appeals, Seventh Circuit

October 22, 1997

Argued May 13, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 16, 1997.

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[Copyrighted Material Omitted]

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Richard J. Swanson (argued), Macey, Macey & Swanson, Timothy L. Stewart, Vernon J. Petri, P.C., Indianapolis, IN, for Plaintiffs-Appellees.

William H. Kelley, Shannon L. Robinson and Jennifer A. Bauer (argued), Kelley, Belcher & Brown, Bloomington, IN, Louis H. Borgmann, Jackson & Borgmann, Indianapolis, IN, for Defendants-Appellants.

Before COFFEY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Steve Rager, a teacher at Southport High School in Indianapolis, Indiana, had an affair with Heather Smith, then a senior at Southport. Heather sued Rager, the Metropolitan School District Perry Township, the Board of Metropolitan School District Perry Township, and the principal and assistant principal of Southport High School for, among other things, violating Title IX's prohibition against sex discrimination. The defendants unsuccessfully moved for summary judgment. We granted defendants permission to file an interlocutory appeal from that denial, and now reverse.

BACKGROUND

The following undisputed facts serve as background to this appeal. Heather Smith (Smith) was born on August 23, 1973. She first met defendant Steve Rager when she was a freshman at Southport High School. Rager taught physical education at Southport and also coached the boys' swim team. Smith was a member of the girls' swim team and often saw Rager at Southport's swim meets. Rager was also a friend of Smith's parents.

The summer following her freshman year, Rager coached Smith through a community summer swimming program. Smith's acquaintance with Rager continued during her sophomore and junior years at Southport and through her participation in the summer swimming program. Up to the summer before her senior year, Smith regarded Rager merely as her coach. But by her third year in the summer program, Smith came to regard Rager as "a very good friend" and "someone she could go to and talk."

The following school year (1990-91) was 17-year-old Smith's senior year. On the first day of classes Rager asked Smith to become his student assistant during her study hall period. Students at Southport had the option of serving as assistants to teachers during study hall, and approximately ten percent of the student body participated in this program. Student assistants usually typed, filed, or ran errands for the teacher. Smith obtained permission to become Rager's student assistant and Rager cleared it with William Pickard, an assistant principal. Beginning in March of 1991, Smith also worked for Rager outside of school at his scuba shop.

In September 1990, shortly after Smith began as Rager's student assistant, Rager made his first sexual advance on Smith: Rager asked Smith if he could give her a kiss, to which she responded with surprised silence. He then said, "You thought I was meaning the real thing," and handed her a Hershey's Kiss. He then said, "You wanted

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the real thing, didn't you?" and kissed her. Smith kissed Rager back. This occurred in his office in the school building during the class period in which Smith was assigned as Rager's student assistant.

Over the ensuing weeks, the kissing continued. Rager also began to put his hand up Smith's skirt. Near the end of September, Rager took Smith into his office bathroom and they had sexual intercourse. On subsequent occasions, they had sex in the bathroom and in a "hospitality room" under the bleachers. Throughout the school year, Rager and Smith had sex about twice a week, always (except for two occasions) on school premises. Rager did not force himself on Smith and she did not resist his advances or tell him "no," except with respect to oral sex, although she later complied with Rager's initiations. Smith enjoyed the sexual relationship and found that she now trusted Rager more than ever. Rager told Smith that he loved her and Smith responded in kind. Smith told no one about the sexual relationship with Rager until it was over and no one ever saw them having sex together. During the school year, Rager and Smith concealed the relationship by engaging in sex quietly in locations where they would not be observed.

As time passed, Smith began to feel confused and disturbed. She was afraid to tell Rager "no" and worried that if she told her parents they would be disappointed. She also worried that she might get in trouble if she told school officials. She decided that while she would rather not engage in sex, in order to maintain the relationship and keep Rager happy, she would have to continue to do so. In January 1991, Smith questioned Rager for the first time about discontinuing the sex. On that and later occasions, she asked him whether he would understand and remain her friend if they stopped having sex. Rager said he would. Smith nonetheless continued to have sex with Rager. In fact, their sexual relationship continued after Smith graduated from Southport High School. Finally, on July 12, 1991, Smith told Rager that she wanted to stop. He asked her for "one last time," and she agreed. After that, they engaged in sex once more on July 18, 1991. There are other sordid details that occurred during the relationship, but because they add nothing to the legal analysis at issue in this case, and only serve to further embarrass Smith, we need not elaborate.

On July 28, 1991, Smith told a male friend (whom she later dated and then married) about her relationship with Rager. The next day, at her friend's urging, she told her parents about her sexual relationship with Rager. She and her parents then reported it to the sheriff's office and school officials. Two days later, school officials suspended Rager and advised him that if he did not resign he would be fired and lose his teaching license. Rager resigned the following day. The school district then sent a letter to the State Board of Education recommending that Rager's teaching license be revoked.

Almost two years later, in May 1993, Smith and her parents filed a multi-count complaint against the Metropolitan School District Perry Township ("School District"), the Board of Metropolitan School District Perry Township ("School Board"), Lloyd Bodie, the principal of Southport High, Larry Hensley-Marshand, the assistant principal of Southport High School, and Rager. (Other defendants were originally named, but later voluntarily dismissed.) In Count I, Smith alleged a claim of sex discrimination under Title IX against the School District, School Board, Bodie and HensleyMarshand. Count II was brought by both Smith and her parents under 42 U.S.C. § 1983 and alleged claims against the School District, School Board, Bodie and Hensley-Marshand and Rager for various alleged constitutional violations. Count III was a state law negligence claim brought against the School District, School Board, Bodie, HensleyMarshand and Rager. Counts IV and V were state law claims against Rager for intentional infliction of emotional distress and seduction.

The School District, School Board, Bodie, and Hensley-Marshand moved for summary judgment. (Rager did not join in the motion for summary judgment and is not a party on appeal.) The district court granted their motion on the § 1983 claim alleged in Count II, but denied summary judgment on the Title IX claim alleged in Count I and the

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negligence claim alleged in Count III. The School District, School Board, Bodie and Hensley-Marshand requested the district court to certify for interlocutory appeal under 28 U.S.C. § 1292(b) the question of liability under Title IX. The district court did so, and we accepted the interlocutory appeal.

ANALYSIS

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(a). In Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979), the Supreme Court held that Title IX implicitly provides a private right of action for sex discrimination. Smith brought such a private action here, alleging sexual harassment by Rager and naming as defendants the School District, the School Board, the principal and assistant principal of Southport High School.

I. Appropriate Defendants Under Title IX

Although the district court did not address the issue, this case presents an initial question concerning the appropriate defendant in a Title IX action. Because Smith's lawsuit sought recovery against the principal and assistant principal of Southport High School, in both their official and individual capacities, before we consider the propriety of the district court's ruling on the summary judgment motion, we must determine whether a claim under Title IX can be stated against such defendants.

First we consider the language of Title IX: "[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." By its terms, Title IX prohibits discrimination only by a "program or activity" receiving federal funding. Accordingly, in Lipsett v. University of Puerto Rico, 864 F.2d 881, 884, 901 (1st Cir.1988), the First Circuit concluded that a claim could not be established...

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