Doe By and Through Doe v. Petaluma City School Dist.
Decision Date | 12 May 1995 |
Docket Number | No. 94-15917,94-15917 |
Citation | 54 F.3d 1447 |
Parties | 100 Ed. Law Rep. 568 Jane DOE, a minor, By and Through her Guardian ad Litem, John DOE, Plaintiff-Appellee, v. PETALUMA CITY SCHOOL DISTRICT; Petaluma Joint Union High School District; Richard Homrighouse, Defendants-Appellants. |
Court | U.S. Court of Appeals — Ninth Circuit |
Larry J. Frierson and Scott N. Kivel, Liebert, Cassidy & Frierson, San Francisco, CA, Robert J. Henry, School & College Legal Services, Santa Rosa, CA, for defendants-appellants.
Maria Blanco, Equal Rights Advocates, San Francisco, CA and Julie Goldscheid, NOW Legal Defense & Educ. Fund, New York City, for plaintiff-appellee.
Charles W. Matheis, Jr., Beam, Brobeck & West, Santa Ana, CA, for amicus curiae, California School Boards Ass'n Educ. Legal Alliance.
Appeal from the United States District Court for the Northern District of California.
Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges.
Opinion by Chief Judge WALLACE; Dissent by Judge PREGERSON.
Homrighouse appeals from a district court order denying him qualified immunity. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. Mendocino Environmental Ctr. v. Mendocino County, 14 F.3d 457, 460 (9th Cir.1994) ( ). We reverse.
Beginning in September 1990, Doe reported to Homrighouse, her school counselor, that she was being harassed by some of her male and female peers. The harassment took the form of sexual comments and lewd writings about Doe on the restroom walls. Homrighouse states that he summoned female students in groups to his office to discuss the unacceptable behavior, and advised Doe about how to work out the problems. Doe alleges that Homrighouse also told her that "boys will be boys" and never told Doe's parents or Doe that the school had a Title IX policy or a Title IX officer, who was responsible for enforcement. It is not contended that Homrighouse sexually harassed Doe. Rather, it is Homrighouse's inaction that Doe argues violated her rights under Title IX and thereby gives rise to a cause of action under 42 U.S.C. Sec. 1983.
In February 1992, Doe's mother withdrew her from the school. In January 1993, Doe initiated a Title IX and section 1983 action against both Petaluma City School District and Homrighouse, alleging that the harassment resulted in physical injury, mental health problems, and emotional distress. After partial dismissal, Doe v. Petaluma City School District, 830 F.Supp. 1560 (N.D.Cal.1993), Doe filed a second amended complaint, asserting a Title IX claim against the School only, and a section 1983 claim against Homrighouse only. The School and Homrighouse moved to dismiss the complaint. See Fed.R.Civ.P. 12(b)(6). The district court entered an order holding that the School could be held liable under Title IX, Homrighouse could not be sued as an individual under Title IX but could be sued for Title IX violations through section 1983, and that Homrighouse was not entitled to qualified immunity. Homrighouse appeals from the order denying qualified immunity. He also asks us to exercise what he terms "pendent appellate jurisdiction" and resolve the question of whether he can be sued for a Title IX violation under section 1983, since Title IX seems to create liability on the part of institutions only.
We first turn to Homrighouse's request that we resolve whether he can be sued for a Title IX violation using section 1983. Homrighouse argues that Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), provides us the authority to do so.
The Court in Siegert "granted certiorari in order to clarify the analytical structure under which a claim of qualified immunity should be addressed," id. at 231, 111 S.Ct. at 1793 (citation omitted), and held that the Court of Appeals for the District of Columbia should "not have assumed, without deciding" whether the right allegedly violated was clearly established. Id. at 232, 111 S.Ct. at 1793. This does not help Homrighouse. Nor have we indicated any interest in broadening our scope of review when evaluating a qualified immunity claim. "On review of a denial of qualified immunity, '[w]e have jurisdiction only to decide if defendant's conduct violated ... clearly established [law].' " Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 871 (9th Cir.1992), quoting Todd v. United States, 849 F.2d 365, 368 (9th Cir.1988). As the Fifth Circuit has said: "We are not free ... to shape the boundaries of our jurisdiction through a general equitable balancing of policy factors." McKee v. City of Rockwall, 877 F.2d 409, 412 (5th Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990); see also Swint v. Chambers County Comm'n, --- U.S. ----, ----, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995) ( ). We therefore do not reach this argument.
A district court's denial of qualified immunity is reviewed de novo. ActUp!/ Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). Homrighouse, as a public school official, is eligible to assert a qualified immunity defense. See Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975) ( ). Because qualified immunity is an affirmative defense from suit, not merely from liability, "[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985).
The standard for determining qualified immunity is objective. "If the law at [the time of the official's actions] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
It is Doe's burden to show that the law was clearly established at the time of Homrighouse's inaction. "If this burden is met by plaintiff, the defendant then bears the burden of establishing that his actions were reasonable, even though they might have violated the plaintiff's [federally protected rights]." Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992) (Maraziti ).
To demonstrate that it was clearly established law at the time of Homrighouse's inaction that a Title IX claim could be stated for failure to prevent peer sexual harassment, Doe "must show that the particular facts of [her] case support a claim of clearly established right." Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.1985) (emphasis in original). This does not mean that the "exact factual situation" of Doe's case must have been previously litigated. Alexander v. Perrill, 916 F.2d 1392, 1397 (9th Cir.1990) (Perrill ). "[S]pecific binding precedent is not required to show that a right is clearly established for qualified immunity purposes." Maraziti, 953 F.2d at 525, quoting Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). Absent binding precedent, "a court should look at all available decisional law including decisions of state courts, other circuits, and district courts to determine whether the right was clearly established." Id., quoting Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). Nevertheless, "[t]he contours of the [clearly established] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Thorsted v. Kelly, 858 F.2d 571, 574 (9th Cir.1988), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In this appeal, it is important to bear in mind that it is the right that is alleged to have been violated that must be clearly established. Davis v. Scherer, 468 U.S. 183, 194 & n. 12, 104 S.Ct. 3012, 3019 & n. 12, 82 L.Ed.2d 139 (1984) (Davis ).
Doe alleges that Homrighouse had a duty to act under Title IX to prevent peer sexual harassment. She does not allege that Homrighouse sexually harassed her, or that he intended that she be harassed. The claim is that he exhibited what Doe calls "intentional indifference" to her right not to be harassed by fellow students. "We have previously held that under Sec. 1983 the qualified immunity defense is inapplicable whenever an official does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the [rights] deprivation." Perrill, 916 F.2d at 1396 (emphasis in original) (internal quotations omitted).
To bring this appeal into focus, it is important to identify what is not before us. The question we must decide is not whether Doe had a clearly established right not to be harassed by fellow students. Rather, we must decide whether it was clearly established under Title IX that Homrighouse had a legal duty to do something about the peer harassment.
At the time of Doe's harassment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2, prohibited sex-based harassment in the employment context. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). But this is not a Title VII case. Title IX of the 1972 Education Amendments deals with the prohibition of sex discrimination against students and employees of educational institutions. See 20 U.S.C. Secs. 1681-1688. Title IX provides: "No person in...
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