Does v. Covington County School Bd.

Decision Date04 February 1997
Docket NumberCivil Action No. 94-D-440-N.
Citation969 F.Supp. 1264
PartiesJohn DOES 1, 2, 3, and 4, Plaintiffs, v. THE COVINGTON COUNTY SCHOOL BOARD, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Stanley J. Murphy, Marita K. Murphy, Tuscaloosa, AL, David Leon Ashford, Birmingham, AL, for Plaintiffs.

Allen G. Woodard, Andalusia, AL, Mark S. Boardman, Clay R. Carr, Birmingham, AL, for Defendants.


DE MENT, District Judge.

On May 10, 1996, the Court entered an Order addressing defendants' motion for summary judgment and subsequent related filings. John Does 1, 2, 3, 4 v. Covington County Sch. Bd. of Educ., 930 F.Supp. 554 (M.D.Ala.1996) [hereinafter Does I]. In Does I the Court reserved ruling on the following issues: (1) the plaintiffs' claim that defendants created a sexually hostile education environment in violation of Title IX of the Education Amendments of 1972, §§ 901-909, as amended, 20 U.S.C. 5 § 1681-1688; (2) the plaintiffs' claim that defendants failed to comply with Title IX requirements pertaining to the adoption and publication of procedures for receiving and investigating complaints of sex discrimination; and (3) the defendants' claim that they are shielded by the doctrine of discretionary immunity from the plaintiffs' state law claims. Id. at 580. Since Does I the parties have further briefed and submitted evidence in support of their respective positions on these remaining issues. The Court will first address the plaintiffs' claims pertaining to Title IX and then turn to the plaintiffs' state law claims.


The Court will provide a brief synopsis of the facts and history of the case up to this point. The plaintiffs are male children who attended W.S. Harlan Elementary School in Lockhart, Alabama. The plaintiffs contend that while they were students at W.S. Harlan they were sexually harassed and abused by a male third grade teacher, Michael Smith ("Smith").1 The defendants in this case are the Covington County School Board of Education ("Board"); the five members of the Board, sued individually and in their official capacities; Terry Holley, sued individually and in his official capacity as Principal of the W.S. Harlan Elementary School; and Dale Odom, sued individually and in his official capacity as Superintendent of Education for Covington County, Alabama. The plaintiffs contend that the defendants are liable for the injuries they suffered at the hands of Smith.

The plaintiffs filed a three count complaint. Count I states a claim under 42 U.S.C. § 1983.2 In Count II, plaintiffs allege claims pursuant to Title IX.3 In Count III, plaintiffs originally alleged four state causes of action: (1) sexual abuse and harassment, (2) outrage, (3) negligence, and (4) sexual assault. Plaintiffs subsequently amended Count III of their complaint to allege an additional state law cause of action, fraud and bad faith.


At the outset, the Court will address defendants' contention that plaintiffs' Title IX claims against the Board are barred by the Eleventh Amendment. The defendants assert that the United States Supreme Court's decision in Seminole Tribe of Florida v. Florida, ___ U.S. ___, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), mandates that this Court reconsider its previous finding that the Board was not entitled to Eleventh Amendment immunity.4 Seminole Tribe raises a question as to whether Congress had the power to abrogate states' Eleventh Amendment immunity for claims brought under Title IX. See 42 U.S.C. § 2000d-7(a)(1) ("[a] state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of ... Title IX of the Education Amendments of 1972"). However, the defendants' argument is foreclosed by Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, (11th Cir.1990), in which the Court of Appeals for the Eleventh Circuit held that under Alabama law, a county board of education is "not an `arm of the state' for purposes of Eleventh Amendment immunity." Id. at 1511.5 Therefore, Seminole Tribe is inapposite to the instant case; the defendants do not have Eleventh Amendment Immunity.

Board Compliance with Title IX Regulations

In Does I the Court directed the parties to submit evidence on whether the Board has complied with the regulations implementing Title IX, specifically 34 C.F.R. §§ 106.8 and 106.9. In brief, these regulations require that educational institutions receiving federal financing (1) designate someone to oversee compliance with Title IX; (2) adopt and publish a grievance procedure; and (3) provide notice of their intent not to discriminate on the basis of sex.

Before discussing the particularities of the Board's compliance or non-compliance with these regulations, the Court must examine the relevance of this entire line of inquiry. Defendants assert that, even if they are not in compliance with Title IX's implementing regulations, such failure to comply does not create a cause of action for the plaintiffs. Plaintiffs, on the other hand, appear to contend that defendants' compliance with Title IX is both relevant to plaintiffs' substantive sexual harassment claims and the basis for a wholly independent claim.

In support of their position, defendants cite Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996). The Seamons Court stated:

[the plaintiff's] claim that the school district discriminated based on sex because it failed to provide Title IX grievance procedures to the students is insufficient to state a claim here because the school district's alleged failure to adopt Title IX's grievance policy and procedures was not itself an act of discrimination based on sex.

84 F.3d at 1233. Similarly, in Bougher v. University of Pittsburgh, 713 F.Supp. 139 (W.D.Pa.1989), aff'd 882 F.2d 74 (3d Cir. 1989), the court found that simply alleging that a university did not have a grievance procedure in place was not sufficient to state a claim for relief. 713 F.Supp. at 145. The reasoning used by these courts is similar. Both courts proceed from the presumption that, to state a claim under Title IX, a plaintiff must allege that he or she was discriminated against on the basis of sex. Seamons, 84 F.3d at 1232; Bougher, 713 F.Supp. at 143-44. After examining the plaintiffs' factual allegations, the courts concluded that the plaintiffs had not made out prima facie cases of sex discrimination, i.e., that the facts did not support an inference that the plaintiffs had been discriminated against on the basis of sex. Seamons, 84 F.3d at 1232-33; Bougher, 713 F.Supp. at 143-44. Turning then to the plaintiffs' allegations that the respective educational institutions were not in compliance with Title IX's procedural requirements, the courts held that compliance or non-compliance was not, unto itself, a discriminatory act, and thus, plaintiffs either had no standing to bring such a procedural challenge or had failed to state a claim for relief. Seamons, 84 F.3d at 1233; Bougher, 713 F.Supp. at 145.

The Court finds such reasoning persuasive. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court first recognized that Title IX contains an implied private cause of action. The Court, after reviewing the statutory language and legislative history of Title IX, held that Congress had intended private litigants to have a cause of action to enforce their Title IX statutory rights. Id. at 688-718, 99 S.Ct. at 1953-68. Title IX provides 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). Thus, the statutory right conferred by Title IX is the right to be free from discrimination on the basis of sex. Hence, it follows logically that, to maintain a cause of action under Title IX, a plaintiff must allege facts which demonstrate he or she was discriminated against on the basis of sex. An institution's failure to comply with a procedural regulation, such as the failure to promulgate a grievance procedure, is not an action which discriminates on the basis of sex. Accordingly, the Court finds that defendants' failure to comply with Title IX's procedural requirements, alone, does not provide plaintiffs with a claim for relief.6

This does not mean, however, that the regulations are completely irrelevant to plaintiffs' cause of action. If the Board failed to comply with the regulations, the Court must consider what effect this failure had on plaintiffs' substantive Title IX rights. The Court will take this issue up in its discussion of plaintiffs' substantive Title IX claims.

Returning to the issue of the Board's compliance, the Court will first identify what the Title IX regulations require. Specifically, 34 C.F.R. § 106.8(b) states:

Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part.

(emphasis in original). The plaintiffs contend that defendants have not complied with § 106.8(b) in that, at the time the plaintiffs were sexually abused, the Board had no specific policy against sexual harassment and the Board's general grievance policy was insufficient. Additionally, plaintiffs contend that these policies were not published in accordance with §§ 106.8 and 106.9.

The standard governing this inquiry is whether the Board took action which sufficiently informed employees and students of their Title IX rights, and whether the Board had in place...

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