Bruneau ex rel. Schofield v. South Kortright Cent. School Dist.

• Decision Date: 31 December 1998
• Docket Number: Docket No. 97-7495
• Citation: 163 F.3d 749
• Parties: 131 Ed. Law Rep. 593 Eve BRUNEAU, a Minor, by and through her Guardians ad Litem, Pat SCHOFIELD and John Bruneau, Plaintiff-Appellant, v. SOUTH KORTRIGHT CENTRAL SCHOOL DISTRICT and South Kortright School Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 749

163 F.3d 749

131 Ed. Law Rep. 593

Eve BRUNEAU, a Minor, by and through her Guardians ad Litem, Pat SCHOFIELD and John Bruneau, Plaintiff-Appellant, v. SOUTH KORTRIGHT CENTRAL SCHOOL DISTRICT and South Kortright

School Board, Defendants-Appellees.

Docket No. 97-7495.

United States Court of Appeals, Second Circuit.

Argued Dec. 12, 1997.

Decided Dec. 31, 1998.

Brooks R. Burdette, New York, New York (William H. Gussman, Jr., Schulte Roth & Zabel LLP, New York, New York; Merrick T. Rossein, Steel, Bellman, Ritz & Clark, New York, New York, of counsel), for Plaintiff-Appellant.

Frank W. Miller, East Syracuse, New York (Benjamin J. Ferrara, Craig M. Atlas, Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse, New York, of counsel), for Defendants-Appellees.

Janet Axelrod, General Counsel, National Education Association of New York (Richard N. Aswad, James F. Haley, Jr., Aswad & Ingraham, Binghamton, New York, of counsel), filed a brief amicus curiae on behalf of National Education Association of New York.

Dennis G. O'Hara, Patricia R. Hoover, O'Hara & O'Connell, Syracuse, New York, of counsel, filed a brief amicus curiae for The New York State Council of School Superintendents.

William R. Yeomans, Acting Assistant Attorney General, Dennis J. Dimsey, Linda F. Thome, U.S. Department of Justice, Washington, D.C., of counsel, filed a brief amicus curiae for the United States.

Nicole L. Gueron, Friedman & Kaplan LLP, New York, New York; Martha F. Davis, Yolanda S. Wu, Julie Goldscheid, NOW Legal Defense and Education Fund, New York, New York, of counsel, filed a brief amici curiae for NOW Legal Defense and Education Fund, ACLU Women's Rights Project, Connecticut Women's Education and Legal Defense Fund, Equal Rights Advocates, National Women's Law Center, Northwest Women's Law Center, Texas Civil Rights Project, Title IX Advocacy Project, and Women's Legal Defense Fund.

Before: OAKES, CARDAMONE, and PARKER, Circuit Judges.

Judge OAKES concurs in a separate opinion.

CARDAMONE, Circuit Judge:

This appeal concerns alleged sexual harassment in a public school. The plaintiff, Eve Bruneau, was at the time of the events recited an 11-year-old sixth grade student in a rural upstate New York school. Her complaint Sixth grade students experience that mysterious in-between time of life where they are too old for Barbie dolls and toy soldiers, but too young for high heels and drivers' licenses. Even adults are unsure how to interpret pre-teen behavior. Plaintiff on the one hand produced an expert witness who, after conducting a national study on sexual harassment in public schools, opined that such conduct occurs as early as the sixth grade, and that sexual harassment in grades six and higher is very prevalent. On the other hand, plaintiff's male sixth grade teacher, testifying for the School, stated that he did not believe any of the conduct charged to the sixth grade boys constituted sexual harassment. Although he conceded such behavior was inappropriate, it could not be, in his opinion, sexual harassment due to the young age of the students involved.

asserts that her male classmates created a hostile educational environment by subjecting her and other female students in her class to verbal and physical sexual harassment. The defendant School maintained a specific policy setting forth its belief that students have an absolute right to be free from sexual harassment in the school, and that such freedom is an inherent part of every student's civil rights.

The jury in this case had to decide not only whether the conduct alleged was sexual harassment or merely childish misbehavior, but also whether the school could be held liable for such conduct. With the jury having absolved the school of liability, plaintiff seeks redress in this Court. Although the record suggests that the actions of plaintiff's male classmates were no doubt hurtful to those female students who were the targets of such conduct, the record also reveals that the trial court committed no error sufficient for us to vacate the verdict.

BACKGROUND

A. Facts

Eve Bruneau began the 1993-94 school year as a student in William Parker's sixth grade class in the South Kortright Central School (School), a public school receiving federal financial assistance. She turned 12 years old in November 1993. Her complaint alleges that she was subjected to a sexually hostile educational environment and that responsible school officials failed to remedy the situation, leading to her eventual withdrawal from the School in March 1994. The jury heard the following testimony at trial.

Bruneau asserted she was the victim of continuous verbal and physical sexual harassment by her male classmates from the start of the school year until her withdrawal six months later. She claimed this harassment created an intimidating, abusive and hostile learning environment, which interfered with her education and caused her to feel depressed. According to Bruneau, the male students regularly called her and her female classmates sexually derisive names such as bitches, prostitutes, whores, lesbians and lesbos. She further alleged that she and the girls experienced bra snapping, hair pulling, spitting, shoving of paper down their blouses, punching, pushing and other physical abuse.

On one particular occasion in October, a male student called plaintiff a "dog-face bitch." Later that day Patricia Schofield, Bruneau's mother, found plaintiff in her room crying and upset by the remark. This discovery prompted Schofield to take action. She reported the incident and others to Parker, her daughter's teacher, during a regularly scheduled parent-teacher conference on November 3. The teacher expressed his concern and assured Schofield this type of behavior would not reoccur. After he failed to speak with Bruneau or the boy involved in the incident, Schofield met with Parker again and demanded he address the matter. Parker thereafter brought plaintiff and the male student together and asked the student whether he had called Bruneau a "dog-face bitch." According to Bruneau, the student responded "no," her teacher unsuccessfully tried to elicit an apology, he then dismissed the student and told her that "people are going to call you names all your life and you'll just have to deal with it." Although Parker testified that the male student initially denied making the comment, Parker said the student eventually apologized to Eve, after which the teacher extended words of comfort to Bruneau.

Meanwhile, Schofield approached Ann Cole during a class field trip. Cole, who at the Displeased with Parker's efforts, Schofield met on November 19 with Lynda Race, the School's assistant superintendent, to inform her of the situation in the sixth grade classroom. During that meeting, she reported Bruneau's and the other girls' complaints about the boys' behavior and Parker's response. When Race relayed those complaints back to Parker, Parker confronted Schofield and told her that if in the future she had complaints about his class, she should deal directly with him.

time was completing a Master's Degree in Education Counseling, interned as a guidance counselor-in-training at the School under the supervision of Deborah Joyal-Reinisch, a full time counselor. Cole thereafter met with girls from Parker's class to investigate Schofield's complaints. Having learned that the sixth grade boys regularly called the girls names and subjected them to unwanted physical touching, she reported these findings to Joyal-Reinisch. Thereafter Cole contacted Parker, conveyed Schofield's concerns to him, and convened a meeting between him and the girls to address the problem--all with Joyal-Reinisch's knowledge. The meeting occurred on November 16. Going around the room, the girls, including Bruneau, took turns describing various incidents to Parker. At the meeting's conclusion, Parker vowed to remedy the situation by moving the students' desks around.

Bruneau claims the boys' behavior continued and, in fact, worsened in early 1994. In February 1994 Patrick Clark replaced Joyal-Reinisch as the full time guidance counselor at the School and instituted a program he later described as "sexual harassment prevention" in plaintiff's sixth grade class. That program proved ineffective.

After several unsuccessful attempts in making an appointment, Schofield eventually did meet with assistant superintendent Race again on Friday, March 25, 1994 to follow up their earlier November 19, 1993 meeting. Plaintiff and her father also were present. The meeting began with Bruneau describing the events that had occurred in the classroom and their effect on her psyche. Schofield asked that her daughter be removed from Parker's class and transferred to the other sixth grade class at the School. Race advised Schofield that only the school board could move Bruneau, and after Race further stated that she had never observed Parker's class nor contacted the parents of any of the alleged offending students, the meeting ended.

That evening, Schofield visited the home of Richard Stinson, the school board vice president. She talked with Stinson in detail about the boys' behavior in Parker's classroom and the lack of remedial action. Schofield informed Stinson of her request to transfer Bruneau and the substance of Race's response. Stinson responded that Race could affect a transfer without board approval if a parent requested it.

The following Monday, March 28, Schofield and her husband took matters into their own hands. They went to the school, and she informed Parker that Bruneau would no longer be in his class, collected her daughter's books and brought them over to the other sixth grade class. Upon discovering Schofield's actions, Race not only insisted Bruneau return to Parker's class, but later called to report that the school board had rejected the transfer. Faced with this demand, Bruneau and her parents decided she would withdraw...