Opinion
Cause No. EV 98-196 C-M/S
May 30, 2000
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the motion of defendant, Evansville-Vanderburgh School Corporation ("EVSC"), seeking judgment in its favor as a matter of law on all of the claims presented in the complaint filed by Lori Leach ("Leach") on October 16, 1998. Leach brought this action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and 42 U.S.C. § 1983. Leach contends that she suffered discrimination when EVSC created a sexually hostile environment at her high school through its pattern and practice of deliberate indifference to sexual harassment, its failure to train employees about dealing with incidents of abuse and its failure to investigate students complaints of sexual harassment. Am. Compl. ¶¶ 21, 22, 23. She further asserts that EVSC's practice proximately caused a violation of her right to bodily integrity and equal protection as protected by the Fourteenth Amendment. Id. ¶¶ 24, 27-29. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendant's motion for summary judgment.
I. FACTUAL PROCEDURAL HISTORY
Leach began her high school education at Central High School ("CHS") in August of 1993. Leach Dep. at 8. CHS is one of five high schools operated by EVSC. Sisk Dep. at 8. At the time Leach started at CHS, Victor Coleman ("Coleman") was the boys basketball coach and physical education teacher. Leach Dep. at 11-12. During her first year, Leach became actively involved in sports including volleyball, basketball and softball. Id. at 9. However, she had no contact with Coleman during her first semester other than seeing him around school and knowing who he was. Id. at 11. Leach first came into direct contact with Coleman during January of 1994 when he became her physical education teacher. Id. In addition to her class, Leach developed a friendship with Coleman because Coleman's wife was the girls basketball coach and Coleman would attend many of the games. Id. at 11, 29. While at the games, Coleman also met Leach's mother and they became friends. Id. at 29. As a result, Leach would often confide in Coleman at school about her mother's physical and emotional problems which stemmed from a work-related accident during the prior year. Id. at 19, 29-31.
At some point early in the spring of 1994, Coleman began planning a family trip to Disney World. Id. at 68. Leach's mother offered Coleman a card which would allow him to obtain tickets at a discounted price. Id. When Leach attempted to deliver the card to Coleman in the boy's locker room, William Asbury, the athletic director, told Thomas Sisk ("Sisk"), the principal, that it seemed like Leach and Coleman were spending a lot of time together and that Coleman and Leach were currently in Coleman's office. Id. at 68-69; Asbury Dep. at 18-19. Sisk then went to Coleman's office to speak with him. Asbury Dep. at 20; Sisk Dep. at 50. Sisk asked Leach to leave. Sisk Dep. at 20. He then instructed Coleman not to be alone in his office with female students. Id.
Coleman and Leach maintained a normal teacher-student relationship until April of 1994 when an incident occurred after school. Leach Dep. at 12, 17. There, Leach and Coleman were walking and talking when Coleman said that he had to get something out of the weight room. Id. at 12-13. As they entered the weight room, Coleman asked Leach whether she had a boyfriend. Id. at 13-14. When Leach realized that no one else was in the room, she began to feel uncomfortable. Id. at 14. Leach responded that she did not have a boyfriend. Id. She then attempted to leave the room. Id. at 15. However, Coleman placed one of his hands on the door when she tried to reach for the handle. Id. He also put his other hand on Leach's shoulder in an attempt to push her back. Id. Coleman then told Leach that he did not know why she did not have a boyfriend because she had pretty blond hair and a "cute butt." Id. Leach didn't say anything and again attempted to leave the room. Id. Coleman then released his hold and allowed Leach to leave. Id. at 16. Following the incident, Leach met her friend "JF" to get ready for softball practice. Id. at 18. At first, Leach said nothing about what had just happened. Id. But, when the two went into the locker room to change, Leach began to cry and told JF what had occurred. Id. Leach told no one else about the incident. Id.
About one week later, Leach was in gym class when Coleman asked her to come into his office. Id. at 22, 25. Even though Leach was apprehensive, she obeyed his instruction. Id. at 22. Once she got inside the door, Coleman grabbed her with one hand, pulled her forward and began grabbing her breasts and butt with his other hand. Id. at 24. Leach responded by telling him no and trying to push him away with her arms. Id. at 25. Coleman then stepped back and Leach left the office. Id. When Leach returned to class, she felt sick to her stomach but she did not tell anyone what had happened because she was ashamed. Id. at 26-27.
During the following week, Leach and several other students were waiting in the gym to begin softball practice when Coleman approached the group and asked Leach to come to his office because he had something to give her mother. Id. at 28. In order to avoid raising any red flags with the other students, Leach complied. Id. Once inside, Coleman again grabbed her and fondled her breasts and buttocks, kissed her and told her that he wished things could go further between them. Id. at 32-33. As during the previous incident, Leach pushed him away and told him that she didn't want anything to do with that kind of relationship. Id. at 32. Leach then left the office and walked around behind the gym before returning to her friends. Id. Leach felt sick but she didn't tell anyone because she was afraid it might upset her mother and she didn't think anyone would believe her. Id. That summer, another incident occurred when Leach was at school for basketball conditioning. Id. at 35. Leach did not have a ride home so she asked Coleman for the keys to his office so she could call her mother. Id. Coleman offered to let her into the office. Id. at 35-36. Once Leach used the phone, she tried to leave and Coleman blocked her path to the door. Id. at 36. He then kissed her on the lips. Id. Leach told him no and that she wasn't comfortable with the situation. Id. She then went outside to wait for her mother. Id. at 36-37. Again, she told no one about the incident. Id. at 38.
Later that summer, Leach and JF were playing basketball when Coleman came into the gym and began to try and block their shots. Id. at 38. At one point, Leach was getting ready to take a shot and Coleman leaned over and kissed her on the forehead. Id. at 39. Because JF was standing under the basket, she did not see Coleman kiss Leach. Id. at 40. After Coleman left, Leach told JF what happened. Id. But, she did not tell anyone else about the incident. Id. at 41. Nor did she tell JF about Coleman's previous advances. Id. at 40.
In addition to these incidents at school, Coleman also harassed Leach while she was babysitting. Id. at 41, 52. Leach began babysitting for Coleman during her freshman year but she sat more often for his family during her sophomore year. Id. at 49. Leach felt uncomfortable about sitting for the Colemans but she agreed to do so to avoid raising suspicions with her mother. Id. at 50-51. During the fifteen to twenty times that Leach babysat, Coleman would wink at her when his wife was not looking and try to put his hand on her leg if he picked her up or drove her home at the end of the evening. Id. at 53. One time, he grabbed her buttocks when he and his wife were leaving the house. Id. at 52.
During 1995, Coleman placed several notes on Leach's vehicle which conveyed his continued desire to have a relationship with her. Id. at 55-57. Leach did not show the notes to anyone. Id. at 57. While Leach now had physical evidence of Coleman's harassment, she was still worried that her mother would be upset. Id. The parties dispute what occurred after Leach received the notes. According to EVSC, there were no physical encounters between Leach and Coleman during her sophomore, junior and senior years. However, Coleman would sometimes walk by Leach's classes to look inside or he would enter the classes to speak with the teachers, basketball players, Leach or other students. He also continued to attend the girls sporting events after April of 1995.
One note read in part: "You know sometimes I look at you just look at you and I see everything I ever wanted in a girl. When we aren't together I think about you and I can't put a finger on why I love you so — then I see you and your smile lights up my life. I wish we were able to be free in our relationship. When you guys came over Friday night I couldn't keep my eyes off you. Your mom said she wish she could have more kids or maybe you or Ryan would give her a grandkid man would I love to be the father of your kids. Lori whatever you do and wherever you go in life don't change just continue to grow and I'll always love you. Maybe one day we will be together? You are a constant thought on my mind + in my heart. I enjoy any quiet moment spent with you. I enjoy just seeing you in the hall. I hope we can meet soon. . ." Leach Dep. Ex. B.
In contrast, Leach asserts that there were several incidents of physical contact during her last two years of high school. Namely, she claims that during her junior year, Coleman would grab her and once left bruises on her body. Leach Aff. ¶ 15. When she was a junior and senior, Coleman continued to come to all of her games and would come over to her house to see her and her mom. Id. ¶ 12. During her senior year, she went to a basketball game with friends and Coleman signed "I love you" to her from the bench more than once by pointing to himself, then holding his hand over his heart and pointing to Leach. Id. ¶ 13. Finally, when Leach was a senior, Coleman brought mistletoe to the girls basketball practice and held it over each player's head and kissed everyone, including Leach, on the cheek. Id. ¶ 14.
Regardless of whether Coleman in fact continued to harass Leach into her junior and senior year, it is undisputed that Leach was not his only victim. Indeed, the uncontroverted facts show that during the course of the early nineties Coleman sexually abused at least two other CHS students as well as a teacher. In early October of 1993, which was just prior to the first incident of misconduct involving Leach, Melissa Huck ("Huck"), a special education teacher, reported to Pamela Blessing ("Blessing"), the assistant principal at CHS, an incident involving Coleman. Blessing Dep. at 24. Huck told Blessing that Coleman had attempted to kiss her and that his actions had made her feel uncomfortable. Id. Blessing then arranged a meeting with Huck and Sisk to discuss the matter. Huck Dep. at 41. The parties dispute whether Blessing instructed the officials to counsel Coleman about the incident. No action was taken. Sisk Dep. at 34.
In early November 1995, "AM", another female student at CHS, reported an incident to Blessing involving inappropriate conduct by Coleman. Blessing Dep. at 29. AM stated that she was sitting on the bleachers after he gym class when Coleman threw a ball to her. Pl.'s Ex. N. Coleman then approached her, stood between her legs and asked: "Is there any reason I should not be standing here? Are you seeing anyone? Is there any reason I should not be standing here?" Id. He then moved closer and repeated the question. Id.
Following this report, Blessing spoke to Sisk about the allegations. Sisk Dep. at 41. Sisk then interviewed AM and asked her to make a written report of what happened. Id. Sisk also questioned other students and Coleman about the incident. Id. When Coleman stated that he never intended to make AM feel uncomfortable, Sisk arranged a meeting to discuss the incident with AM, her foster parents, her counselor, Blessing and Coleman. Id. at 43-44. At the meeting, Coleman admitted that he had asked AM if she was seeing anyone and apologized for making her feel uncomfortable. Pl.'s Ex. N. AM was asked if she was comfortable with what had been said and she indicated that she was. Id. She said that Coleman was her favorite teacher. Id. Coleman then assured AM that this would not affect how he felt toward her and he again apologized for having made her feel uncomfortable. Id. At the conclusion of the conference, the parties agreed that perhaps AM was overly sensitive about what had happened, that Coleman had apologized and his apology had been accepted. Sisk Dep. at 46-47. Thus, no further action was taken. Id. at 48.
In early January of 1997, "EV," another female student at CHS, reported that Coleman had touched her in an inappropriate manner. Blessing Dep. at 41. EV stated that Coleman had asked her to come into his office to show her what he got for Christmas. Id. When she went into the room, Coleman attempted to kiss her and then put his hands up her shirt and down her pants. Id. Sisk investigated the complaint by speaking to teachers and other students to corroborate EV's story. Sisk Dep. at 56-58. In conducting his investigation, Sisk spoke to JF who told him about the incident that she witnessed between Leach and Coleman while the girls were playing basketball. Id. at 58.
At that point, Sisk called Leach into his office and questioned her about Coleman. Id. Leach told Sisk about Coleman's behavior towards her and stated that she had several notes that Coleman had left on her car. Id. at 58-59. Leach gave the notes to Sisk. Id. at 59. Thereafter, Sisk contacted Steven Fritz, the executive director of EVSC for student and personnel services, who suspended Coleman while an investigation was conducted. Fritz Dep. at 28. Following his suspension, Coleman attempted to resign but the School Board rejected his letter of resignation so they could officially terminate his teaching contract. Id. at 37. Once Coleman was terminated, criminal charges were filed. Blessing Dep. at 48. Coleman pled guilty to the allegations regarding misconduct with Leach. Leach Dep. at 76.
Leach filed this action on action on October 16, 1998. At present, this case is before the Court on the motion for summary judgment filed by EVSC on May 7, 1999. EVSC asserts that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and § 1343. Having reviewed the factual background, the Court now turns to a brief overview of the standards governing its decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
III. DISCUSSION
Leach contends that she suffered sex discrimination when Coleman continually harassed her during the course of her high school education and that EVSC, as a federally-funded school, is liable for damages under Title IX because it knew that Coleman was harassing other students and failed to take action to correct the situation. She also claims that EVSC violated her constitutional right to liberty and equal protection as preserved by the Due Process Clause of the Fourteenth Amendment when it followed a pattern of failing to adequately address incidents of sexual harassment and misconduct within the school system and practice of failing to train school officials about sexual abuse. The Court will address each of her contentions in turn.
A. TITLE IX
Title IX provides in relevant 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). In Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979), the Supreme Court held that Title IX implicitly provides a private cause of action. It then held in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), that a damages remedy is available, relying on the rule that federal courts may award all appropriate relief for violations of federal statutes providing a general right to sue. Id. at 65-76. Franklin was a case involving sexual harassment of a female high school student by a teacher. Id. at 63-64. Although the merits of the claim were not at issue, in rejecting one of the defendants' arguments against the rule favoring all appropriate relief, the Supreme Court reasoned that school districts receiving federal funds would be on notice that Title IX gives rise to liability for monetary damages in cases of teacher-student sexual harassment. Id. at 74-75. In so reasoning, the Supreme Court cited Title VII caselaw for the proposition that sexual harassment is a form of sex discrimination. Id. at 75 (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986)).
Leach's claim under Title IX is for hostile environment sexual harassment. To establish a prima facie case of hostile environment sexual harassment, Leach must show: (1) that she belongs to a protected class, (2) she was subjected to unwelcome "verbal or physical conduct of a sexual nature," (3) the harassment was based on sex, (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create a hostile working environment, and (5) there was some basis for liability. Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220, 1228 (7th Cir. 1997). In this case, EVSC does not dispute that it is subject to Title IX's requirements or that Leach was participating in an "educational program or activity receiving Federal financial assistance" at the time of the challenged conduct. Nor do they dispute that Leach can establish any of the first four elements of her prima facie case. Its motion for summary judgment is based on the argument that there is no basis for holding a school corporation liable on the facts presented.
In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court set forth the standard or determining whether a school corporation should be held liable under Title IX when a teacher sexually harasses a student. There, Gebser, a high school student, developed a sexual relationship with one of her teachers. Id. at 277-78. She did not report the relationship to school officials. Id. at 278. After the couple was discovered having sex and the teacher was arrested, Lago Vista terminated his employment. Id. At the time he was arrested, the school district had not developed a formal antiharassment policy or distributed an official grievance procedure for lodging complaints of sexual harassment. Id. The district court granted summary judgment for the school district. Id. at 279. In affirming, the Supreme Court held that damages may not be recovered for teacher-student sexual harassment under Title IX unless a school official who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct. Id. at 290. Under that framework, the Court then concluded that summary judgment was proper because the only information given to the school about the teacher's misconduct was a complaint from parents alleging only that the teacher had made inappropriate comments during class, which was insufficient to alert the school to the possibility that the teacher was involved in a sexual relationship with a student. Id. at 291.
Applying Gebser, EVSC asserts that summary judgment is proper as it did not have actual knowledge that Coleman was harassing Leach because Leach failed to report the incidents to anyone until after the conduct had ceased. Leach counters that while she did not tell a teacher or school officials about the harassment for some time EVSC had received complaints from another student as well as a teacher alleging inappropriate comments and touching. Thus, it had actual knowledge of Coleman's misconduct. The Court need not resolve this dispute, however, as it concludes that even if complaints by other students and faculty constitute actual notice EVSC's response to correct the situation was not deliberate indifference to the harm presented.
The Supreme Court in Gebser did not apply the concept of deliberate indifference to the facts in that case because it concluded that the school district did not have actual knowledge of the teacher's misconduct. But, in laying out the framework for determining when a school district is liable for sexual harassment by one of its employees, the Court noted that the enforcement scheme set forth in Title IX presupposes that an official who has been advised of a violation has refused to take action to bring the school into compliance with the statute. Id. at 290. Put differently, the statute imposes liability on a school only where the school has made an "official decision not to remedy the violation." Id. The Court then stated that this scheme "finds a rough parallel" in the standard of deliberate indifference for claims under § 1983 alleging that a municipality's actions in failing to prevent a deprivation of federal rights was the cause of the deprivation. Id. at 291.
In the context of a § 1983 claim, the Supreme Court has described deliberate indifference as an official decision to "consciously disregard an obvious risk that [another] would subsequently inflict a particular constitutional injury." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 411 (1997). Deliberate indifference is more than mere negligence. See id. at 407. The Supreme Court recently applied this standard to a Title IX claim in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). There, a fifth-grade student was subjected to a prolonged pattern of sexual harassment by one of her classmates which included numerous incidents of unwanted touching and vulgar statements such as "I want to get in bed with you" and "I want to feel your boobs." Id. at 633. On approximately five different occasions, the student reported the conduct to her teachers as well as school officials including the principal but no action was taken. Id. at 634. In fact, the student complained about the harassment for three months before she was even permitted to change her classroom seat so that she was no longer seated next to her offender. Id. at 635. In addition to the plaintiff, the Court noted that other girls in the class fell prey to the boy's conduct. Id. But, when the students attempted to speak with the principal about the harassment their request was denied with the statement: "If [the principal] wants you, he'll call you." Id.
Taken together, the Court in Davis concluded that these allegations were sufficient to prevent dismissal of the student's complaint. Id. at 654. In reaching this result, the Court emphasized that in order for a plaintiff to recover the school must "intentionally act in clear violation of Title IX by remaining deliberately indifferent to acts . . . of which it had actual knowledge." Id. at 642. This deliberate indifference must itself "effectively cause the discrimination." Id. at 642-43. The Court explained that this standard is necessary "to eliminate any risk that the [school] would be liable in damages not for its own official action but instead for its employees' independent actions." Id. at 643 (quoting Gebser, 524 U.S. at 290-91). It then stated that to avoid liability, a school or other federal funding recipient "must merely respond to known peer harassment in a manner that is not clearly unreasonable" and that liability will be found only where the entity's response, or lack thereof, is "clearly unreasonable in light of the known circumstances." Id. at 648-49. Under this standard, the Court then found that the plaintiff had shown deliberate indifference as the facts alleged revealed that the school board had made "no effort whatsoever" to either investigate or remedy her complaint of sexual harassment despite numerous reports made to school officials. Id. at 652.
The Seventh Circuit has not yet applied the Davis standard, but the Court in this case is guided in its analysis by the decisions of two other jurisdictions. In Reese v. Jefferson School District No. 14J, 208 F.3d 736 (9th Cir. 2000), the Ninth Circuit held that Jefferson School District was not liable for the alleged harassment of several female students by their male classmates. Id. at 740. In that case, several girls were suspended for throwing water balloons at a group of boys during a "senior skip day" event. Id. at 738. When they were disciplined, the girls argued that they were merely retaliating for several acts of harassment committed by the boys during the school year and filed claims under Title IX and § 1983 alleging that the school district was liable for the alleged misconduct. Id. In affirming the grant of summary judgment for the school, the Court said that the school was not deliberately indifferent to improper conduct of which it had actual knowledge because the plaintiffs conceded that they did not report their harassment to anyone in authority until after they themselves were threatened with disciplinary action for their mischief at the school event. Id. at 740. By that time, the school year had ended and there was no evidence that any harassment occurred after the school district learned of the plaintiff's allegations. Id. Thus, the Court reasoned that under Davis the school district could not be deemed to have "subjected" the plaintiffs to the harassment. Id.
Similarly, the Sixth Circuit held in Soper v. Hoben, 195 F.3d 845 (6th Cir. 1999), that a school district was not liable for the harassment, sexual molestation and rape of a female special education student by three of her classmates at school and on the bus. Id. at 855. There, the Court concluded that the school district did not have actual knowledge of the harassment until after the fact and the plaintiff failed to present any evidence of deliberate indifference by the school. Id. The Court noted that once the school learned about the incidents of abuse, it "quickly and effectively" took efforts to correct the situation. Id. Specifically, the school immediately contacted the proper authorities, investigated the incidents, installed windows in the doors of the special education classroom, placed an aide in the victim's classroom and created student counseling sessions concerning how to function socially with members of the opposite sex. Id. In addition, the school expelled one of the perpetrators once the criminal investigation was complete. Id. This prompt and thorough response by school officials to the complaint was not "clearly unreasonable in light of the known circumstance." Id. Therefore, the plaintiff could not establish Title IX liability under Davis. Id.
With this guidance, the Court finds that EVSC's response to the allegations of misconduct by Coleman was not deliberate indifference. To the contrary, the record shows that the response of school personnel to each account was nearly immediate. Before receiving any reports of sexual misconduct from a student, school officials learned from Asbury, the athletic director, that Coleman appeared to be spending a lot of time with Leach and that the two were currently in Coleman's office in the boys locker room. Although this was in no way a complaint of actual misconduct, Sisk immediately went to Coleman's office, asked Leach to leave and told Coleman that he was not to spend time with female students behind closed doors.
Sisk subsequently received a student report of sexual harassment by Coleman from AM. Upon receiving this information, Sisk immediately began an investigation which included getting a written report of the incident from AM, speaking to AM as well as a witness, contacting AM's guardians and scheduling a meeting with AM, Coleman, AM's guardians and school officials the following day. At the meeting, AM was given a chance to recount the event and Coleman responded that he never intended to make her feel uncomfortable. When AM stated that she didn't want to be removed from Coleman's class and wanted to be Coleman's friend, Sisk reasonably concluded that the report was simply the result of a misunderstanding and did not file a complaint. AM's guardians were comfortable with this result and Sisk told AM that if she needed to talk about anything further that she could come to his office. Typed notes from the meeting were produced for the school's records.
Finally, when Sisk received an actual complaint of sexual harassment involving Coleman from EV, he immediately conducted an investigation. His probe included speaking to and taking written statement from several students that might have seen something. When this effort lead Sisk to evidence of Coleman's misconduct with Leach, he immediately called Leach to the office to question her about the allegations. Sisk took a statement from Leach and sent her home to retrieve the notes which Coleman left on her car. Sisk then contacted Fritz, an EVSC official responsible for personnel matters. Once Fritz received the results of a handwriting analysis on the notes, Coleman was suspended pending a formal investigation. At that point, Coleman attempted to resign but the School Board rejected his letter of resignation in order to officially terminate his position. Once Coleman was terminated, he was reported to the prosecutor's office and criminal proceedings were instigated. The Court concludes, as a matter of law, that this response to Leach's allegations as well as the other students was not "clearly unreasonable."
B. 42 U.S.C. § 1983
To state a claim under § 1983, a plaintiff must allege: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived them of rights, privileges, or immunities secured by the Constitution. Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000). A local government unit is subject to suit under § 1983 because it is deemed a "person" within the meaning of the meaning of that provision. Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978). The Supreme Court has consistently interpreted this language as barring respondeat superior liability on the part of a local government unit. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989); City of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 691. Rather, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.
The Seventh Circuit has set forth three instances in which a municipality can be said to have violated the civil rights of a person because of its policy: (1) an express policy that, when enforced, causes a constitutional deprivation, (2) "a widespread practice that, although not authorized by written law or express municipal policy, is `so permanent and well settled as to constitute a custom or usage' with the force of law," or (3) an allegation that the constitutional injury was caused by a person with "final policymaking authority." Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735 (7th Cir. 1994). In this case, Leach centers her claim on the second instance. She contends that EVSC followed a widespread pattern of failing to adequately deal with sexual harassment claims and that such pattern was so well-settled and permanent that it became a practice with the force of an official policy. As a result, Leach asserts that EVSC violated her right to bodily integrity under the Due Process Clause and her right to equal protection. In response, EVSC counters that both of Leach's § 1983 claims are barred by the so-called "Sea Clammers doctrine" first articulated by the Supreme Court in Middlesex County Sewage Authority v. National Sea Clammers Ass'n., 453 U.S. 1 (1981).
1. Sea Clammers Doctrine
Leach's case implicates several different but closely related rights and remedial schemes each of which could provide the foundation for a cause of action and prayer for relief. But, when rights and their attendant remedies overlap, a cause of action under one may preempt the pursuit of a cause of action under another. Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 861 (7th Cir. 1996) (citing Brown v. General Servs. Admin., 425 U.S. 820 (1976)). The Court must therefore examine the relationship between the two statutes relating to Leach's case in order to determine whether one of her claims preempt the other. In Sea Clammers, the Supreme Court stated that "when remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Sea Clammers, 453 U.S. at 20. In this case, § 1983 and Title IX both prohibit intentional discrimination by government entities and individuals based on gender. Both statutes also provide compensatory and punitive damages as remedies for that conduct. Sea Clammers holds that such overlap is prohibited. Accordingly, the Court must determine whether Leach's claim under Title IX preempts her claim under § 1983 or vice versa.
The Seventh Circuit considered the application of Sea Clammers in Waid v. Merrill Area Public Schools, a case of first impression. 91 F.3d at 857. In Waid, a teacher who believed that a Wisconsin public school had denied her a job because of her sex brought an employment discrimination claim with a state agency charged with enforcing Wisconsin's fair employment law. Id. at 859. The agency ruled in Waid's favor and granted her all of the remedies available under state law. Id. Waid then brought suit in federal court to seek additional remedies available under Title IX and § 1983. Id. The district court granted summary judgment for the school system on the basis that Waid's pursuit of administrative relief under state law prevented her from pursuing any of her federal claims. Id.
On appeal, the Seventh Circuit concluded that Waid's successful pursuit of a state-law sex discrimination claim did not preclude her subsequent Title IX claim in federal court. Id. at 866. It then considered whether Waid's § 1983 action was preempted by her Title IX claim. Turning to the Third Circuit's decision in Pfeiffer v. Marion Center Area Schools, 917 F.2d 779 (3d Cir. 1990), for guidance, the Court noted that Title IX gives plaintiffs access to the "full panoply" of judicial remedies which suggests that Congress saw the statute as the device for redressing any grievance arising from a violation of federal civil rights by an educational institution. Id. at 863. In creating this statutory regime, Congress superseded a cause of action under § 1983 that was based on constitutional principles of equal protection. Id. Thus, a plaintiff may not claim that one instance of intentional discrimination simultaneously creates a cause of action under both statutes. Id. The availability of a Title IX claim precluded Waid's pursuit of her § 1983 equal protection claim. Id.
Applying Waid, EVSC argues that Leach's § 1983 claims are preempted by her Title IX claim for a sexual harassment hostile environment. In response, Leach counters that preemption under Sea Clammers is not warranted in this matter for two reasons. First, with respect to her due process claim, Leach claims that the cases cited by EVSC do not hold that Sea Clammers would preclude a § 1983 claim based on a substantive due process theory. Instead, those cases dealt solely with whether or not Title IX precluded a § 1983 claim for violation of the plaintiff's right to equal protection. In this case, the basis for Leach's due process claim is violation of her right to bodily integrity which is wholly unrelated to Title IX's concern for discrimination in education based on gender. Thus, Sea Clammers is inapplicable. Second, with respect to her equal protection claim, Leach argues that since the Supreme Court decided Sea Clammers its subsequent decisions in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), and United States v. Virginia, 518 U.S. 515 (1996), hold that a § 1983 claim based on equal protection should not be barred by Title IX where the plaintiff is alleging gender discrimination from a school's policy or practice.
On the issue of Leach's due process claim, the Court declines to address whether Sea Clammers is applicable because Leach has failed to present sufficient evidence to survive summary judgment on the merits. With respect to equal protection, the Court concludes that Leach's § 1983 claim is barred by Title IX. In short, Leach's reading of the Supreme Court's decisions in Hogan and Virginia is misconstrued. In those cases, the Sea Clammers doctrine was never addressed because there the plaintiffs were challenging single-sex admissions policies which are expressly excluded from the requirements of Title IX. Because Congress expressly exempted public educational institutions from Title IX with regard to their admissions policies, Title IX did not provide the plaintiffs with a "sufficiently comprehensive" scheme to protect their constitutional rights. Section 1983 was the exclusive avenue through which the plaintiffs could pursue their claims. Thus, their remedies under § 1983 were not precluded. Here, in contrast, Leach maintains that EVSC's pattern and practice of failing to effectively deal with complaints of sexual harassment denied her an education which was equal to that of her male classmates. Leach has failed to show how her claim extends beyond the scope of Title IX. Under Sea Clammers as applied by the Seventh Circuit in Waid, her § 1983 claim is therefore preempted.
Section 901(a)(5) of Title IX states:
(a) Prohibition against discrimination; exceptions
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, except that:
. . .
(5) Public educational institutions with traditional and continuing admissions policy. In regard to admissions this section shall not apply to any public institutions of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex
. . .
20 U.S.C. § 1681(a)(5).
2. Due Process
The Court now turns to the merits of Leach's § 1983 claim for violation of her right to bodily integrity under the Due Process Clause of the Fourteenth Amendment. Leach asserts that she was deprived of her constitutional right to bodily integrity as a result of EVSC's widespread pattern of failing to punish teachers who sexually harass students and practice of failing to train school officials who are responsible for investigating complaints of abuse. In support of this contention, Leach cites a line of cases following the Third Circuit's decision in Stoneking v. Bradford Area School District, 882 F.2d 720 3d 1989), cert. denied, U.S. 1044 (1990).
In Stoneking, a graduate filed suit under § 1983 alleging that her former band director used physical force, threats of reprisal, intimidation and coercion to sexually abuse and harass her when she was a student. Id. at 722. With respect to the school district, she argued that the school was liable for her injuries because it maintained a practice and policy of deliberate indifference to instances of known or suspected sexual abuse by teachers, concealing complaints of abuse and discouraged students' complaints about such conduct. Id. at 725. She claimed that these practices, customs or policies created a climate which facilitated sexual abuse of students by teachers in general and that there was a causal relationship between this conduct and the repeated sexual assaults against her by her teacher. Id. In reversing the district court's grant of summary judgment, the Third Circuit stated that nothing in the Supreme Court's decisions suggests that state officials may escape liability from their policies maintained in deliberate indifference to actions taken by their subordinates. Id. Thus, a plaintiff could bring an action that alleges that a school's actions directly caused her constitutional harm. Id.
Leach points to two cases in which district courts in this jurisdiction have followed Stoneking. In Doe v. Board of Education of Hononegah School District 207, 833 F. Supp. 1366 (N.D. Ill. 1993), the Northern District of Illinois held that a female student had alleged sufficient facts to support an action against school administrators for denial of her liberty interest where there were numerous allegations that officials knew of instances of sexual abuse between the teacher defendant and minor female students before and during the time in which the plaintiff was abused, where no effective action was taken, where administrators failed to report such conduct to the appropriate authorities and where administrators concealed knowledge of the teacher's past sexual misconduct from another victim and her mother. Id. at 1379. In reaching this conclusion, the Court noted that there were also allegations that the school had failed to train teachers, counselors and other school personnel to report suspected sexual abuse. Id.
Similarly, in Doe v. Paukstat, 863 F. Supp. 884 (E.D. Wis. 1994), the Eastern District of Wisconsin denied a motion to dismiss where the plaintiff alleged that a school district had promulgated policies which allowed sexual abuse to flourish in her grade school and that she was sexually molested by her math teacher as a result of its actions. Id. at 888. There, the Court noted that the plaintiff had called and written the principal several years after the incident to inform him of the abuse that she had suffered and that he had failed to respond. Id. at 887. In addition, plaintiff's attorneys had found several documents in the teacher's personnel record which concerned incidents of improper physical contact between the teacher and other female students, including allegations that he touched their hair and rubbed the back of their shirts to see if they were wearing bras. Id. at 887. The Court then found that based on these allegations the plaintiff had set forth a valid practice and policy claim against the school. Id.
Leach urges the Court to follow this line of decisions in the instant case. She claims that while EVSC has a written policy regarding sexual harassment, a pattern and practice of failing to adequately address incidents of sexual harassment and misconduct has emerged which has created a climate in which teachers believe that they will not be punished for the abuse of their students. The effect of this pattern is reflected in over twenty-one complaints of sexual misconduct which students have filed against EVSC employees since 1993. In addition, Leach contends that EVSC has consciously chosen to enact a policy which places the authority for dealing with complaints in the hands of building-level officials, rather than EVSC administrators. She argues that this practice results in situations where untrained employees are given the exclusive power to decide whether the school takes any form of action on a given complaint. In a case like AM where Sisk determined that no actual harassment had occurred, Leach asserts that a jury could conclude that the minimization of legitimate complaints is actually a condonation of the teacher's behavior by EVSC. And, by minimizing complaints at the building-level EVSC is deterring other students from reporting incidents of misconduct in the future.
EVSC adopted a policy statement on sexual harassment in 1992 and a complaint procedure in 1993 which provides that students may report sexual harassment to a teacher, counselor, administrator or the Executive Director of Student and Personnel Services. Sisk Dep. at 12-14; Sisk Dep. Ex. 1. Complaints of sexual harassment are then forwarded to the principal for investigation and resolution at the building level where appropriate. Sisk Dep. Ex. 3. Where the principal is unable to resolve a complaint at the building level, the principal is ordered to forward a report of the investigation to the Executive Director of Student Services for further investigation. Id. Final corrective action decisions are made by the Board of School Trustees. Id. EVSC provides all students with a copy of its sexual harassment policy in the Student Rules. Sisk Dep. at 11. Students also attend class meetings at the beginning of the school year during which school officials discuss EVSC rules and regulations, including the procedure for reporting incidents of sexual harassment. Id.
Based on the relevant law and facts presented in this matter, the Court concludes that summary judgment is appropriate for two reasons. First, the cases cited by Leach were decided prior to the Seventh Circuit's decision in Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), which strongly suggests that the Court has not adopted the pattern and practice theory of liability set forth in Stoneking. There, a student filed suit under § 1983 alleging that the school violated his right to due process by "acting with deliberate indifference in maintaining a policy or practice of failing to punish his [student] assailants, thereby encouraging a harmful environment." Id. at 460. Nabozny cited Stoneking in support of his contention. The Court rejected this argument reasoning that the school could not be liable under a substantive due process theory because it is well-settled that a school has no affirmative duty to prevent abuse of its students. See DeShaney v. Winnebago County Dep't. of Social Servs., 489 U.S. 189 (1989); J.O. v. Alton Community Unit Sch. Dist., 909 F.2d 267 (7th Cir. 1990). The Court stated:
Nabozny argues, and presents facts suggesting, that the defendants had a policy or practice of ignoring his pleas for help, and that as a result, he was repeatedly assaulted. Nabozny's theory has one fatal flaw: it rests on a failure to act. Under Alton Community, the defendants had no duty to act. Therefore, to hold them liable for a practice of failing to act would run directly counter to Alton Community.
Nabozny, 92 F.3d at 460. Applying Nabozny, Leach cannot survive summary judgment in this case. Leach's theory of pattern and practice policy rests not on an affirmative action taken by EVSC which resulted in violation of her constitutional rights but on an alleged failure to act. Because EVSC had no duty to act, it is entitled to judgment as a matter of law.
Second, even if the Seventh Circuit had adopted the Stoneking theory of liability summary judgment would still be warranted on the facts presented because as discussed above EVSC's response to the allegations of Leach and several other students was not deliberate indifference. To the contrary, Sisk and other CHS officials appeared to respond immediately to the concerns presented. In Leach's case, Sisk quickly reported the matter to the EVSC administration at which point Coleman was suspended pending a formal investigation, criminal charges were filed and Coleman was terminated. As for the other incidents of abuse to which Leach alludes, Leach fails to mention that although EVSC has received over twenty-one incidents of student/teacher misconduct within the past seven years, the school system educates over 22,000 students per year. Finally, the Court is similarly unpersuaded by Leach's allegation that complaints of harassment are handled by untrained lower-level employees and that such practice allows and even encourages student abuse. According to the deposition testimony of Dr. Phillip Schoffstall, Superintendent of EVSC, principals, department heads and teachers attend district level staff presentations at which they are instructed how to investigate and report complaints of sexual misconduct. The Court concludes that Leach has failed to establish the existence of a pattern or practice by which EVSC enabled sexual abuse of students by teachers to flourish.
IV. CONCLUSION
Leach has failed to present sufficient evidence from which the Court could find a genuine issue of material fact for trial in this matter. Therefore, the motion for summary judgment filed by EVSC is GRANTED.