Alexander v. Yale University, 559

• Decision Date: 22 September 1980
• Docket Number: No. 559,D,559
• Citation: 631 F.2d 178
• Parties: Ronni ALEXANDER, Ann Olivarius, Pamela Price, Margery Reifler and Lisa Stone, Plaintiffs-Appellants, v. YALE UNIVERSITY, Defendant-Appellee. ocket 79-7547.
• Court: U.S. Court of Appeals — Second Circuit

Page 178

631 F.2d 178

Ronni ALEXANDER, Ann Olivarius, Pamela Price, Margery Reifler and Lisa Stone, Plaintiffs-Appellants, v. YALE UNIVERSITY, Defendant-Appellee.

No. 559, Docket 79-7547.

United States Court of Appeals Second Circuit.

Argued April 16, 1980.

Decided Sept. 22, 1980.

Nadine Taub, Women's Rights Litigation Clinic, Rutgers School of Law, Newark, N. J. (Elizabeth Schneider, New York City, Anne E. Simon, Pillsbury & Simon, New Haven, Conn., of counsel), for plaintiffs-appellants.

S. Robert Jelley, New Haven, Conn. (William J. Doyle, Edward W. Dunham, Wiggin & Dana, New Haven, Conn., of counsel), for defendant-appellee.

Joan Vermeulen, Hoboken, N. J., and Michael Krinsky, New York City, for amici curiae The American Civil Liberties Union, The Women's Equity Action League Educational and Legal Defense Fund, Working Women's Institute, The National Conference of Black Lawyers and Black Women Organized for Political Action.

Nancy L. Davis, Joan Messing Graff, Judith E. Kurtz, San Francisco, Cal., for amici curiae Equal Rights Advocates, Inc. and Women Organized Against Sexual Harassment.

Before LUMBARD and MULLIGAN, Circuit Judges, and SPEARS, District Judge. ^*

LUMBARD, Circuit Judge:

Five women who were students at Yale University appeal from a judgment entered by Judge Burns on July 3, 1979, in the United States District Court for the District of Connecticut. The appellants alleged in their complaint that Yale was violating Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and H.E.W.'s Title IX regulations, by refusing to consider seriously women students' complaints of sexual harassment by male faculty members and administrators. They argue that the district court erred in dismissing four of them as plaintiffs, in denying plaintiff Pamela Price's subsequent request for class certification, in excluding certain evidence from the trial of Price's claim, and in failing to grant the relief requested-an order enjoining Yale to institute a procedure for receiving and investigating complaints of sexual harassment-because Price failed to prove that she was sexually harassed. We affirm the judgment of the district court for Yale as to all of the plaintiffs.

I.

Section 1681 of Title IX (hereinafter "Title IX") states:

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 ....

Under the authority of § 1682, H.E.W. requires educational institutions receiving federal assistance to "adopt grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part." 45 C.F.R. § 86.8(b).

In an amended complaint filed on November 15, 1977, three female students, two female graduates, and one male professor at Yale alleged that Yale's "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 violation of Title IX and H.E.W.'s regulation. ¹ The plaintiffs sought as relief (1) a declaratory judgment that Yale's policies and practices regarding sexual harassment violate Title IX and (2) an order enjoining Yale, among other duties, "to institute and continue a mechanism for receiving, investigating, and adjudicating complaints of sexual harassment, to be designed and implemented under the supervision" of the district court.

The plaintiffs sought that relief on behalf of themselves and the class, which they purported to represent, of those Yale students and faculty members "who are disadvantaged and obstructed in their educational relations" by Yale's failure to combat sexual harassment. More specifically, they sued on behalf of (1) female students who have had to choose between tolerating sexual demands from "men in positions of authority at Yale" or sacrificing "any educational opportunity, benefit or chance to grow or advance educationally;" (2) female students who "are subject to the discriminatory atmosphere adverse to their educational development created by the practice of such sexual harassment;" and (3) all faculty members "whose professional effectiveness in teaching and in engaging in the pursuit of knowledge with students is seriously impaired by that contamination of the faculty/student relationship created by defendant's tolerance of said sexual pressures."

Additionally, each plaintiff alleged an injury which was "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." Thus:

Ronni Alexander, a 1977 graduate of Yale College, alleged that she "found it impossible to continue playing the flute and abandoned her study of the instrument, thus aborting her desired professional career," because of the repeated sexual advances, "including coerced sexual intercourse," by her flute instructor, Keith Brion. Alexander further alleged that she attempted to complain to Yale officials about her harassment, but "was discouraged and intimidated by unresponsive administrators and complex and ad hoc methods."

Margery Reifler, a member of the Class of 1980, alleged that Richard Kentwell, coach of the field hockey team, "sexually harassed" her while she was working as that team's manager, and that she "suffered distress and humiliation .... and was denied recognition due her as team manager, all to her educational detriment." Reifler further alleged that she "wanted to complain to responsible authorities of defendant about said sexual harassment but was intimidated by the lack of legitimate procedures and was unable to determine if any channels for complaint about sexual harassment were available to her."

Pamela Price, a member of the Class of 1979, alleged that one of her course instructors, Raymond Duvall, "offered to give her a grade of 'A' in the course in exchange for her compliance with his sexual demands," that she refused, and that she received a grade of "C" which "was not the result of a fair evaluation of her academic work, but the result of her failure to accede to Professor Duvall's sexual demands." She further alleges that she complained to officials of Yale who failed to investigate her complaint and told her that "nothing could be done to remedy her situation."

Lisa Stone, a member of the Class of 1978, alleged that her discussions with a woman student who had been sexually harassed and the absence of an "established, legitimate procedure" for complaints of such harassment caused her "emotional distress," deprived her of "the tranquil atmosphere necessary to her pursuit of a liberal education," and put her "in fear of her own associations with men in positions of authority at Yale."

Ann Olivarius, a 1977 graduate, alleged that the absence of a procedure for complaining about sexual harassment "forced (her) to expend time, effort and money in investigating complaints herself, preparing them to be presented to responsible officials of defendant, and attempting to negotiate the complexities of ad hoc 'channels.' " Olivarius further alleged that she was "subjected to threats and intimidation from individuals involved in her investigations and was given no protection or encouragement by responsible officials of defendant." ²

Then District Judge Newman, upon the opinion of Magistrate Latimer, dismissed all the plaintiffs but Price in an order entered on December 21, 1977. 459 F.Supp. 1 (D.Conn.1977). The court dismissed Stone and Olivarius on the ground that they had not asserted claims "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." Believing that "(n)o judicial enforcement of Title IX could properly extend to such imponderables as atmosphere or vicariously experienced wrong," the court held that Stone and Olivarius "advance(d) no persuasive claim that they have been deprived of cognizable Title IX rights." The court dismissed Alexander, although she alleged a "personal experience of sexual harassment," on the ground that her graduation mooted her claim for equitable relief absent the "sheer conjecture" that she might someday wish to resume her flute studies. The court dismissed Reifler, although she too alleged a personal experience of sexual harassment, because she had not complained to anyone at Yale. Citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the court concluded that Reifler's claim "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;" and the court further held that "the concept of mere respondeat superior appears ill-adapted to the question of Title IX sex discrimination based on harassment incidents." As to Price, the court held that "academic advancement conditioned upon submission to sexual demands constitutes sex discrimination in education," and it therefore refused to dismiss Price.

Price subsequently sought class certification for female students at Yale who are discriminated against on the basis of sex by Yale's policies and practices "with respect to the sexual harassment of women students by men in positions of authority, in particular by male faculty members and administrators, specifically by having to choose between toleration of, or compliance with, sexual demands and pressures by such men and any...