Cooper v. Gustavus Adolphus College, Civil No. 4-95-684.

• Decision Date: 28 March 1997
• Docket Number: Civil No. 4-95-684.
• Parties: Jennifer COOPER, Plaintiff, v. GUSTAVUS ADOLPHUS COLLEGE and Karle Erickson, Defendants.
• Court: U.S. District Court — District of Minnesota

957 F.Supp. 191

Jennifer COOPER, Plaintiff, v. GUSTAVUS ADOLPHUS COLLEGE and Karle Erickson, Defendants.

Civil No. 4-95-684.

United States District Court, D. Minnesota, Fourth Division.

March 28, 1997.

Susan M. Robiner and Daniel L. Palmquist, Leonard Street & Deinard, Minneapolis, MN, for defendant Gustavus Adolphus College and Axel Steuer.

Paul R. Haik, Krebsbach & Haik, Minneapolis, MN, for defendant Karle Erickson.

MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

TUNHEIM, District Judge.

Karle Erickson was a tenured professor and a choir director at Gustavus Adolphus College ("College") until he was dismissed by the College for violating its Sexual Harassment Policy through his sexual contact with a student, plaintiff Jennifer Cooper. Cooper has settled and dismissed her claims against both defendants. The remaining claims are those of Erickson against the College and its President for violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681, et seq., breach of contract, defamation, and tortious interference with contract. Cross-motions for summary judgment are before the Court. For the reasons set forth below, the Court grants summary judgment on all of the motions of the College and its President, except for certain contract claims.

I. Title IX Claims

Erickson brings claims under Title IX, alleging both that the procedural unfairness of his dismissal process and its contamination with gender bias are actionable under Title IX. He has not brought any claims under Title VII of the Civil Rights Act of 1964. Title IX prohibits sex discrimination on the part of educational programs that receive federal funds. The remedy for discrimination explicitly set forth in the statute is the denial of federal funding. The courts have recognized an implied cause of action on behalf of students and prospective students who are discriminated against in education. Franklin v. Gwinnett County, Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994). Furthermore, a lawsuit under Title IX may challenge the validity of administrative regulations terminating federal funding of an educational institution that discriminated on the basis of sex in employment practices. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) ("Bell").

However, most courts have rejected the theory that employees of an educational institution have an implied cause of action for damages under Title IX. Lakoski v. James, 66 F.3d 751, 754 (5th Cir.1995); Howard v. Bd. of Educ. Sycamore Community Unit, 893 F.Supp. 808, 815 (N.D.Ill.1995); Wedding v. Univ. of Toledo, 862 F.Supp. 201, 203-04 (N.D.Ohio 1994); Storey v. Bd. of Regents, 604 F.Supp. 1200, 1205 (W.D.Wis.1985).¹ These courts have all reached the conclusion that since Title VII provides a comprehensive and carefully balanced remedial mechanism for redressing employment discrimination, and since Title IX does not clearly imply a private cause of action for damages for employment discrimination, none should be created by the courts.²

The only federal case cited by the parties to the contrary is Henschke v. New York Hospital-Cornell Medical Ctr., 821 F.Supp. 166, 172 (S.D.N.Y.1993). This case sums the private cause of action that students and prospective students have under Cannon and Franklin together with the cause of action to challenge rules related to federal funding and employment discrimination under Bell. Id. at 172. The case fails to appropriately consider the impact of the existence of Title VII remedies for employment discrimination. The Court will join others in rejecting the analysis of Henschke and concluding that there is no private action for damages available to a college employee under Title IX for sex discrimination. See, e.g., Lakoski, 66 F.3d at 754.

Erickson also argues that Title IX and its implementing rule create federal rights to a fair process for faculty members accused of sexual harassment. The theory is that Title IX and 34 C.F.R. § 106.8(b) require an equitable grievance procedure for handling sexual harassment, that this is a federal mandate requiring recipient educational programs to adopt and implement a process which is equitable to employees accused of discrimination as well as their accusers, that the process adopted and implemented by the College failed to meet this requirement of federal law, and that there is a private cause of action to remedy this wrong.

Erickson relies upon a case from a state trial court in New York, Starishevsky v. Hofstra Univ., 161 Misc.2d 137, 612 N.Y.S.2d 794, (N.Y.Sup.Ct.1994). This case is flawed in that it mixes together principles of federal and state law and fails to distinctly analyze federal law, but the facts are the closest to the case at bar. Starishevsky was a Hofstra University administrator who was dismissed following charges of sexual harassment pursued through University procedures created under Title IX and its implementing rule. This rule requires educational programs receiving federal funds to adopt grievance procedures providing for "prompt and equitable resolution of student and employee complaints" of sex discrimination. 34 C.F.R. § 106.8(b). Starishevsky successfully challenged the fairness of the University's procedures on grounds analogous to the issues raised by Erickson.

The court began its analysis by citing a principle of New York law that a university's decision to discipline a faculty member must be predicated on procedures which are fair and reasonable and which lend themselves to a reliable determination. Starishevsky, 161 Misc.2d at 145, 612 N.Y.S.2d 794. The court cited numerous cases developing the particulars of this right under New York law for a fair hearing for faculty members. Id. The Starishevsky court then observed that federal rules require a "prompt and equitable" grievance procedure, asserting, without citation, that this requires a procedure "fundamentally fair to both the accused and the accuser." Id. at 146, 612 N.Y.S.2d 794. The court then bundled together the federal and New York law to recognize a right of one accused of sexual harassment to a fair hearing with certain procedures that Hofstra University had failed to provide. Id. at 146-47, 612 N.Y.S.2d 794. In an additional analysis, the court found the dismissal to be arbitrary and capricious under a New York procedure for judicial review of dismissals by educational institutions. Id. at 147-50, 612 N.Y.S.2d 794 (citing CPLR Article 78). Significantly, the case came before the court as a petition for judicial review under Article 78 and Title IX was merely referred to as one of the sources of the petitioner's rights, not as the vehicle for a cause of action.

Starishevsky is a New York state case applying New York law, in which the federal issue is not analyzed distinctly. Erickson has not argued that employees of private colleges in Minnesota have rights comparable to those which appear to exist in New York. Furthermore, even if the Court were to agree that Title IX requires that any grievance process be fair to an accused employee, Erickson has failed to demonstrate that such a right may be enforced through a private cause of action.

Indeed, a statutory right to due process in grievance proceedings under Title IX has been implicitly rejected in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994). There, a student who had been found to have committed sexual harassment and suspended for that reason sued under Title IX to challenge his suspension. The Second Circuit held that alleged flaws in a sexual harassment procedure were not actionable in the absence of a "particularized allegation relating to a causal connection between the flawed outcome and gender bias." Id. at 715. Under Yusuf, there is no Title IX statutory due process right separate from a right to be free from discrimination, even for a student. This must be all the more true for an employee, whose action for damages for discrimination must be found in Title VII, not Title IX.

The Court rejects any claim for employment discrimination on the basis of sex under Title IX, as Title VII is the only remedy for such a claim. Furthermore, the Court holds that there is no statutory right to due process in grievance proceedings under Title IX separate from its prohibition of discrimination. On the Title IX claims, the Court grants summary judgment to the College and denies Erickson's motion for summary judgment.

II. Contract Claims

The contract that governs Erickson's employment is the Faculty Manual. This Faculty Manual includes certain appendixes that deal with specific issues. Appendix B governs dismissal proceedings. It provides for procedural rights which Erickson claims the College violated. Appendix D creates a discrimination and sexual harassment grievance procedure. If this matter were to go to trial, the College would dispute whether Appendix D applied during the relevant period, or whether it was superseded by the All College Policy on Sexual Harassment. However, in making this motion for summary judgment, the College concedes that this is a factual dispute, and it argues that even if Appendix D is applied, all of Erickson's rights under it were respected.

Appendix D provides for both an informal and a formal process for handling sexual harassment or other discrimination grievances. The informal process requires very little, and there is no dispute that its requirements were met. The formal process requires many steps which the College admits it did not follow, such as a written complaint served on the respondent and an independent hearing officer.

The critical portion of Appendix D is the part that specifies when a formal process is required:

If the matter is not resolved to the complainant's satisfaction through this informal...