Fitzgerald v. Barnstable School Committee

• Decision Date: 05 October 2007
• Docket Number: No. 06-2596.,06-2596.
• Parties: Lisa Ryan FITZGERALD, Etc., et al., Plaintiffs, Appellants, v. BARNSTABLE SCHOOL COMMITTEE et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

504 F.3d 165

Lisa Ryan FITZGERALD, Etc., et al., Plaintiffs, Appellants, v. BARNSTABLE SCHOOL COMMITTEE et al., Defendants, Appellees.

No. 06-2596.

United States Court of Appeals, First Circuit.

October 5, 2007.

Wendy A. Kaplan, with whom Anne Glennon and Law Office of Wendy A. Kaplan were on brief, for appellants.

Emily J. Martin, Lenora M. Lapidus, Sarah R. Wunsch, and American Civil Liberties Union Foundation, Woman's Rights Project on brief for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Crittenton Women's Union, Equal Rights Advocates, Jane Doe, Inc., Legal Momentum, Massachusetts Society for the Prevention of Cruelty to Children, Dr. Nan Stein, National Partnership on Women & Families, National Women's Law Center, Sargent Shriver National Center on Poverty Law, Women's Bar Association of Massachusetts, and Women's Law Project, amici curiae.

Andrea C. Kramer and Sullivan, Weinstein & McQuay on brief for Women's Bar Ass'n of Mass., amicus curiae.

John M. Simon, with whom Kay H. Hodge, Joan L. Stein, and Stoneman, Chandler & Miller LLP were on brief, for appellees.

Before Howard, Circuit Judge, Selya, Senior Circuit Judge, and Dyk,^* Circuit Judge.

SELYA, Senior Circuit Judge.

This appeal grows out of allegations that paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level. The district court, acting initially on a motion to dismiss and thereafter on a motion for summary judgment, resolved the case in favor of the defendants (a school committee and school superintendent). Although we in no way condone harassment such as is alleged here, we are mindful that school districts and school officials have limited ability to guard against such incidents. The defendants in this case responded reasonably to the reported harassment — and that is all that the law requires. Accordingly, even though we disagree with one portion of the district court's decisional calculus, we affirm the judgment below.

I. BACKGROUND

The essential facts (some undisputed, some alleged) are outlined in the district court's exegetic opinion on summary judgment, see Hunter v. Barnstable Sch. Comm., 456 F.Supp.2d 255, 259-61 (D.Mass.2006), and we assume the reader's familiarity with that account.¹ Consequently, we furnish here only a brief synopsis of the details directly relevant to our analysis.

On the morning of February 14, 2001, Jacqueline Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan and Robert Fitzgerald, that each time she wore a dress to school — typically, two to three times a week — an older student on her school bus would bully her into lifting her skirt. Lisa Ryan Fitzgerald believed that these incidents accounted for recent changes in Jacqueline's behavior. She immediately called the principal of Jacqueline's school, Frederick Scully, to report the allegations.

The school system employed a prevention specialist, Lynda Day, whose responsibilities included responding to reports of inappropriate student behavior and instituting warranted disciplinary measures. Scully and Day met with Jacqueline and her parents later that morning. Because school officials were unable to identify the alleged perpetrator from Jacqueline's sketchy account, they arranged for her to observe students disembarking from the school bus.

This surveillance took place over the next two days. Jacqueline identified the perpetrator as Briton Oleson, a third-grader. That same day, Scully and Day questioned Briton, who steadfastly denied the allegations. Day then interviewed the bus driver and a majority of the students who regularly rode the bus. Despite these efforts, she was unable to corroborate Jacqueline's version of the relevant events.

Shortly thereafter, the Fitzgeralds told Scully that Jacqueline had furnished additional details about her ordeal. She now said that, in addition to pressing her to lift her dress, Briton had bullied her into pulling down her underpants and spreading her legs. Scully immediately scheduled a meeting with the Fitzgeralds in order to discuss this new information. He also re-interrogated Briton and followed up on some of the interviews that Day had conducted.

By this time, the local police department had launched a concurrent investigation. This probe was handled by a detective specializing in juvenile matters, Reid Hall, who among other things questioned both Jacqueline and Briton. Hall found Briton credible, and the police department ultimately decided that there was insufficient evidence to proceed criminally against him. Relying in part on this decision and in part on the results of the school's own investigation, Scully reached a similar conclusion as to disciplinary measures.

During the currency of these probes, the Fitzgeralds had been driving Jacqueline to and from school. In late February, the school offered to place her on a different bus or, alternatively, to leave rows of empty seats between the kindergarten students and the older pupils on the original bus. The Fitzgeralds rejected these suggestions. The school's primary suggestion — switching buses — attracted special indignation; in the Fitzgeralds' eyes, the school was punishing Jacqueline rather than Briton (who would continue to ride the original bus).

The Fitzgeralds countered with a series of other alternatives, such as placing a monitor on the bus or transferring Briton to a different bus. The superintendent of the school system, Russell Dever, declined to implement any of these proposals.

Although her parents' actions ensured that there were no further incidents aboard the school bus, Jacqueline asserted that she had several unsettling interactions with Briton as the school year progressed. Some were casual encounters in the hallways. The most notable interaction, however, occurred during a mixed-grade gym class. This was an episode in which a gym teacher randomly required Jacqueline to give Briton a "high five."

Each incident was acknowledged by Scully as soon as it was reported, and there is no claim that Scully failed to address these incidents. In any event, Jacqueline stopped participating in gym class and began to miss school with increasing frequency.

In April of 2002, the Fitzgeralds sued two defendants — the elementary school's governing body (the Barnstable School Committee) and the superintendent — in the federal district court. Their complaint included (i) a claim against the School Committee for violation of Title IX of the Education Act Amendments of 1972, 20 U.S.C. §§ 1681-1688; (ii) claims against both the School Committee and the superintendent under 42 U.S.C. § 1983; and (iii) a miscellany of state-law claims against both defendants.

In due season, the defendants filed an omnibus motion to dismiss. Ruling ore sponte, the district court (Keeton, J.) granted the motion as to the section 1983 and state-law claims but denied it as to the Title IX claim. Following the completion of discovery, the School Committee moved for summary judgment on the latter claim. The district court (Young, J.) obliged. See Hunter, 456 F.Supp.2d at 266. This timely appeal ensued.

II. THE TITLE IX CLAIM

We begin with the plaintiffs' contention that the district court erred in granting summary judgment on the Title IX claim. We afford de novo review to that ruling and, in so doing, we apply the same legal standards that pertained in the lower court. See Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). Thus, we may affirm this disposition only if the facts contained in the summary judgment record, viewed in the light most congenial to the nonmovants (here, the Fitzgeralds), show beyond legitimate question that the movant (here, the School Committee) is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006).

When conducting this tamisage, we must resolve any factual conflicts to the plaintiffs' behoof and draw all reasonable inferences from the facts in their favor. See Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). We are free, however, to disregard "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

We turn next to the substantive law that governs the claim in question. Title IX provides, in relevant part, that "[n]o person ... 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). Although the statute does not contain an explicit private right of action as a vehicle for enforcing its commands, the Supreme Court has interpreted it to confer such a right. See Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Under this judicially implied private right of action, aggrieved parties may recover pecuniary damages for violations. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

A school should be a haven for a youngster, and sexual harassment in an elementary school is never to be condoned. But schools and school officials face a daunting challenge in maintaining a safe, orderly, and well-disciplined environment. Where peer-on-peer sexual harassment is alleged, the Title IX framework, as authoritatively interpreted, imposes a distinct set of legal rules. Within that framework, an educational institution — and for present purposes we treat the School Committee, which stands in the shoes of Jacqueline's elementary school, as an educational institution — may be liable for student-on-student sexual harassment in certain limited circumstances. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). To prevail on such a claim, a student first must...