Bolon v. Rolla Public Schools

• Citation: 917 F. Supp. 1423
• Decision Date: 06 March 1996
• Docket Number: No. 4:93CV2034 CDP.,4:93CV2034 CDP.
• Parties: Shelly M. BOLON, Plaintiff, v. ROLLA PUBLIC SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

917 F. Supp. 1423

Shelly M. BOLON, Plaintiff, v. ROLLA PUBLIC SCHOOLS, et al., Defendants.

No. 4:93CV2034 CDP.

United States District Court, E.D. Missouri, Eastern Division.

January 5, 1996.

Memorandum Certifying Decision for Interlocutory Appeal March 6, 1996.

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David C. Howard, St. Louis, MO, for Shelly M. Bolon.

Robert J. Krehbiel, Evans and Dixon, St. Louis, MO, Thomas A. Mickes, Peter H. Ruger, Celynda L. Brasher, Peper and Martin, St. Louis, MO, for Rolla Public Schools, Robert McKay, D. Kent King, Roger Berkbuegler.

Howard B. Becker, Dan L. Birdsong, Thomas and Birdsong, Rolla, MO, for Daniel P. Heitert.

MEMORANDUM AND ORDER

PERRY, District Judge.

This matter is before the Court on defendants' motion for summary judgment.

Plaintiff originally brought this action against the Rolla Public Schools, Daniel P. Heitert, a teacher in the Rolla Public Schools, Robert McKay, a member of the Board of Education of the Rolla Public Schools, D. Kent King, Superintendent of the Rolla Public Schools, and Roger Berkbuegler, Principal of Rolla Senior High School. The action arises from the alleged sexual misconduct of defendant Heitert toward plaintiff when she was a student at Rolla Senior High School. Plaintiff has reached a settlement with defendant Heitert, and has now dismissed all her claims against that defendant.

All remaining defendants have moved for summary judgment on the remaining counts, Counts IV, V, and X. Count IV alleges that defendant Rolla Public Schools subjected plaintiff to intentional discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. Count V alleges that defendants McKay, King and Berkbuegler deprived plaintiff of an education free of sex discrimination and subjected her to a loss of privacy in violation of the Ninth and Fourteenth Amendments to the United States Constitution.¹ Count X, a state-law negligence claim, alleges that defendants McKay, King and Berkbuegler failed to provide a reasonably safe environment.

Defendants contend that they are entitled to judgment as a matter of law because (1) any alleged injury that plaintiff suffered is beyond the scope of Title IX, (2) plaintiff has not demonstrated that defendants had notice of her relationship with defendant Heitert or that once it was brought to their attention, defendants displayed deliberate indifference, and (3) defendants McKay, King and Berkbuegler were acting as public officials and, therefore, are immune from liability on plaintiff's negligence claim. The parties have extensively briefed the issues raised by the motion and have filed evidence, including affidavits and deposition testimony, in support of their positions.

In determining whether summary judgment should issue, the facts and inferences from these facts are viewed in the light most favorable to the non-moving party and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, however, the non-moving party may not rest on the allegations in its pleadings but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e).

1. Count IV (Title IX)

The sexual misconduct by defendant Heitert occurred during the 1987-88 school year, at which time plaintiff was a sixteen-year-old junior at Rolla Senior High School. Heitert was a teacher and football coach at the high school. Heitert initiated sexual contact with plaintiff, who was a student in his class, in October 1987. The sexual relationship between Heitert and plaintiff continued until February 1988, when plaintiff's parents learned of the relationship and informed school officials. During the sexual relationship, Heitert told plaintiff she did not have to worry about her grade in his class. Sexual and other contact between the two occurred both at and away from the school.

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, reads in pertinent part: "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." 20 U.S.C. § 1681(a). The Supreme Court in Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), established that a school district, as a recipient of federal funds, can be liable for monetary damages under Title IX to the victim of intentional discrimination. The Supreme Court implicitly acknowledged that sexual harassment includes coercive sexual activity between a male high school teacher and a female student and implicitly accepted such behavior as sex discrimination prohibited by Title IX. Id.

The standard of a school district's liability for sexual harassment by teachers against students under Title IX is not clear. Courts have adopted several different approaches, including the following: (1) the agency principles contained in the Restatement (Second) of Agency § 219(2)(b) (essentially a "negligent or reckless" standard), see Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co., 900 F.Supp. 844 (W.D.Tex.1995); Rosa H. v. San Elizario Indep. Sch. Dist., 887 F.Supp. 140 (W.D.Tex.1995); (2) knowledge or direct involvement by the school district, see Howard v. Board of Educ., 876 F.Supp. 959 (N.D.Ill.1995) (involving sexual harassment of an employee rather than a student); Letlow v. Evans, 857 F.Supp. 676 (W.D.Mo.1994); Floyd v. Waiters, 831 F.Supp. 867 (M.D.Ga.1993); R.L.R. v. Prague Pub. Sch. Dist. I-103, 838 F.Supp. 1526 (W.D.Okla.1993); (3) the Title VII standards of employer liability in sexual harassment cases (i.e., "knew or should have known" for hostile environment and strict liability for quid pro quo harassment), see Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995); Kadiki v. Virginia Commonwealth Univ., 892 F.Supp. 746 (E.D.Va.1995); Hastings v. Hancock, 842 F.Supp. 1315 (D.Kan.1993); Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288 (N.D.Cal.1993); and (4) strict liability, see Leija v. Canutillo Indep. Sch. Dist., 887 F.Supp. 947 (W.D.Tex.1995).

This Court, guided by the Supreme Court's Franklin decision interpreting Title IX, holds that intentional discrimination by teachers is imputed to the school district under the principles of respondeat superior, regardless of whether the intentional discrimination is the creation of a hostile environment, the demand for sexual favors, the removal of females from the classroom, or any other intentional discrimination based on sex in violation of Title IX.²

Franklin involved the alleged sexual harassment of a student (including coerced sexual intercourse) by a teacher at her high school. Although the Court did not directly address the issue of the school district's liability for the intentional acts of its teacher, the following passage regarding the intent requirement is indicative of the Court's approach to the liability issue:

The point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. See id. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 at 17, 101 S.Ct. 1531 at 1540 67 L.Ed.2d 694 (1981). This notice problem does not arise in a case such as this, in which intentional discrimination is alleged. Unquestionably, Title IX placed on the Gwinnett County Schools the duty not to discriminate on the basis of sex, and "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminates' on the basis of sex." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal monies to be expended to support the intentional actions it sought by statute to proscribe.

Franklin, 503 U.S. at 74-75, 112 S.Ct. at 1037. This passage indicates that the Supreme Court would impose liability against a school district that accepts federal funds for the intentional discrimination by an agent, regardless of whether the district "knew or should have known" about the discrimination. To date, at least two federal courts have interpreted the Franklin language to imply this "strict liability" standard. Leija v. Canutillo Indep. Sch. Dist., 887 F.Supp. 947, 953 (W.D.Tex.1995) (involving sexual abuse of student by teacher); Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560, 1574-75 (N.D.Cal.1993) (involving sexual harassment by peers), rev'd on other grounds, 54 F.3d 1447 (9th Cir.1995).

There are several compelling reasons to impute the intentional actions of teachers to the school district under Title IX, even beyond the Supreme Court's implied adoption of strict liability in Franklin. In determining the standard of liability, it should be noted that the Supreme Court has afforded Title IX "a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1918, 72 L.Ed.2d 299, 308 (1982) (quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966)). Unlike employers, school districts make express assurances to prohibit sex discrimination in exchange for the acceptance of federal funds. See 34 C.F.R. § 106.4 (1994). In...