Alexander v. Yale University, Civ. No. N-77-277.

• Decision Date: 21 December 1977
• Docket Number: Civ. No. N-77-277.
• Citation: 459 F. Supp. 1
• Court: U.S. District Court — District of Connecticut
• Parties: Ronni ALEXANDER et al. v. YALE UNIVERSITY.

459 F. Supp. 1

Ronni ALEXANDER et al. v. YALE UNIVERSITY.

Civ. No. N-77-277.

United States District Court, D. Connecticut.

December 21, 1977.

Anne Simon, New Haven, Conn., Margaret Kohn, Washington, D.C., Susan Meredith, New Haven, Conn., for plaintiffs.

William Doyle, Wiggin & Dana, New Haven, Conn., for defendant.

NEWMAN, District Judge.

The Ruling of the Magistrate is hereby adopted as the decision of the Court. Because of the significance of the issue concerning Title IX of the Education Amendments of 1972, the Ruling is set forth in full as Appendix A.

APPENDIX A

ARTHUR H. LATIMER, Magistrate.

RULING ON MOTION TO DISMISS

The appropriateness of immediate federal judicial relief is at issue in the instant civil action seeking redress for purported sex discrimination at Yale University. Plaintiffs are a male faculty member and several women students or former students who fundamentally contend that the defendant university's purported

"failure to combat sexual harassment of female students and its refusal to institute mechanisms and procedures to address complaints and make investigations of such harassment interferes with the educational process and denies equal opportunity in education."

In requesting corrective measures "to be designed and implemented under the supervision of this Court", plaintiffs assert a right to relief individually and on behalf of a proposed class under Title IX of the Education Amendments of 1972, which provides in pertinent part in 20 U.S.C. § 1681(a) that

"no 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 . . .."

In express terms, Tile IX calls for administrative enforcement of that prohibition against sex discrimination, with funding cut-off a potential sanction when "compliance cannot be secured by voluntary means", 20 U.S.C. § 1682, but plaintiffs have not attempted resort to the responsible enforcing agency, the Department of Health, Education and Welfare. The statute contains no explicit grant of private suit rights other than through ultimate judicial review of H.E.W.'s actions, see 20 U.S.C. § 1683, and in moving to dismiss defendant chiefly argues that no right to sue can be properly "implied".

It is of course settled that no express statutory reference to a right of action is required to enable federal courts "to provide such remedies as are necessary to make effective the congressional purpose", J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964), and judicial remedies accordingly have been thought appropriately "implied" when "congressional purposes are likely to be undermined absent private enforcement" by those "intended to be protected by the statute", Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 25, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977). The general inquiry prompted by defendant's pending motion then is "whether the creation by judicial interpretation of the implied cause of action asserted . . . is necessary to effectuate Congress' goals", id. at 26, 97 S.Ct. at 941.

That "need" inquiry here involves distinct aspects. A logical prerequisite is that there be a sufficiently defined wrong under the statute invoked, and claims for relief adequately presented by the parties plaintiff. In this regard, it should be stressed at the outset that while the complaint deserves generous reading, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the question is not so much the customary one on motion to dismiss — whether plaintiffs could conceivably prove facts calling into play an established right of action — as instead whether any circumstance depicted genuinely impels judicial creation of a new suit right, cf. Turpin v. Mailet, Civil No. N-75-181 (D.Conn. May 13, 1977). Such an approach is surely also consistent with Title IX's aims, for the statute is clearly addressed to specific practices of exclusion, inequitable resource allocation and similar concrete abuses. So viewed, most claims advanced in this action are tenuous indeed.

The complaint is founded on alleged instances of sexual harassment of women students by male faculty members or administrators, and the principal claim for relief is for an order "requiring defendant to institute and continue a mechanism for receiving, investigating and adjudicating complaints of sexual harassment", with plaintiffs asserting in conclusory fashion that their reported experiences are somehow

"the result of a pattern, practice, and policy of defendant, its officers, agents, and employees, of neglecting and refusing to consider seriously complaints of sexual harassment of women students, with the effect of actively condoning continued sexual harassment of female students by male faculty members and administrators."

Before considering the university's possible responsibility, however, it must be observed that in any event a number of the proposed plaintiffs simply advance no persuasive claim that they have been deprived of cognizable Title IX rights. Plaintiff John Winkler, a member of the classics department, believes his teaching effort to have been hampered by an "atmosphere of distrust of male professors"; plaintiff Lisa Stone, a current student, speaks of "great emotional distress" on learning that another woman student was "the subject of sexual pressures and attentions from" a male university employee; plaintiff Ann Olivarius, a recent Yale graduate, relates that she had occasion as an officer of the Undergraduate Women's Caucus when at Yale to discuss with other students their complaints of sexual harassment, and allegedly met rebuff or indifference in attempting to press such complaints herself. None of these claims is of personal exclusion from a federally funded education program or activity, or of the personal denial of full participation in the benefits of such a program or activity in any measurable sense. No judicial enforcement of Title IX could properly extend to such imponderables as atmosphere or vicariously experienced wrong, and the claims just mentioned are untenable on their face.

Since any underlying claim that she was herself denied Title IX rights in unsuccessfully pursuing others' complaints does not merit recognition, there is no need to examine the propriety otherwise of the lone request for damages, plaintiff Olivarius' incidental prayer for $500 as compensation for asserted expenditure of "time, effort and money in investigating complaints herself, preparing them to be presented to responsible officials . . . and attempting to negotiate the complexities of ad hoc `channels'". Moreover, her graduation seems to have rendered moot her claim for equitable relief, which would appear to be the case as well for plaintiff Ronni Alexander — a graduate in 1977 before suit was commenced — absent sheer conjecture that the latter may in the future wish to resume study in a field allegedly abandoned at Yale because of "sexual demands" by her tutor, cf. DeFunis v. Odegaard, 416 U.S. 312, n. 5 at 320, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

Currently at Yale are two other women students who — like plaintiff Alexander — complain of a direct, personal experience of sexual harassment. Plaintiff Margery Reifler speaks in general terms of humiliation, distraction from studies and denial of recognition resulting from alleged harassment by a coach when she was manager of an athletic team; she "wanted to complain to responsible authorities" but did not. Plaintiff Pamela Price asserts that she received a poor grade in a course in her major field of study, not due to any "fair evaluation of her academic work", but as the consequence of her rejecting a professor's outright proposition "to give her a grade of `A' in the course in exchange for her compliance with his sexual demands". Price represents that she did complain promptly after that alleged incident only to be "told by responsible officials of defendant that nothing could be done to remedy her situation"; plaintiff further alleges that long after the ensuing course mark was given, she was asked to re-submit her complaint, but then "no investigation of the incident" was made and Yale officials have indicated that "nothing further will or can be done about her complaint". Plaintiff Price is a senior, in the process of applying to law schools, and expresses immediate concern that a clearly improper low grade "could materially damage . . . likelihood of admission".

A critical difference between these two claims is that plaintiff Reifler concededly made no complaint on which Yale could act, while plaintiff Price did complain to the university and supposedly met rebuff. The former's artfully drafted but conclusory assertion that general university inertia should be equated with policy and has "the effect of actively condoning . . . sexual harassment" is simply not adequate to show that Yale acted to deny her any right, cf. Rizzo v. Goode, 423 U.S. 362, 376-377, 96 S.Ct. 598, 606-607, 46 L.Ed.2d 561 (1976); Turpin, supra, and the concept of mere respondeat superior appears ill-adapted to the question of Title IX sex discrimination based on harassment incidents. This is not to say either that sexual harassment is never of concern under Title IX, or that a university may properly ignore the matter entirely. In plaintiff Price's case, for example, it is perfectly reasonable to maintain that academic advancement conditioned upon submission to sexual demands constitutes sex discrimination in education, just as questions of job retention or promotion tied to sexual demands from supervisors have become increasingly recognized as potential violations of Title VII's ban against sex discrimination in employment, see, e. g., Barnes v. Costle, 183 U.S.App.D.C. 90, 561 F.2d 983, 988-992 (1977). When a complaint of such...