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refusing to apply the intra-corporate conspiracy doctrine to a sexual harassment claim
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No. C-99-5123 JCS
April 14, 2000
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Defendants' Motion To Dismiss And For A More Definite Statement came on for hearing on Friday, March 31, 2000, at 9:30 a.m. For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
I. INTRODUCTION
This action involves the alleged failure of the Oakland Unified School District ("OUSD"), the Board of Education and various agents and employees of the school district to prevent the sexual harassment of a student attending a middle school in the district, even though school officials allegedly were made aware of the harassment by the Plaintiff and his mother, who made complaints to school officials "on an almost daily basis." Complaint at 5, ¶ 19 (attached as Exhibit A to Defendants' Motion). Defendants seek an order dismissing the complaint on the ground that it fails to state a cause of action. Defendants assert that: 1) Plaintiff's claims against the district are barred by the Eleventh Amendment; 2) Plaintiff's conspiracy allegations should be dismissed for failure to allege conspiracy with specificity and on the basis of the intra-corporate conspiracy doctrine; 3) as to the claims against individual defendants, Plaintiff has failed to meet the heightened pleading standards that are applied to such claims, and; 4) Plaintiff has not alleged any constitutionally protected interest in his equal protection claim based on perceived sexual orientation and his due process claim. In the alternative, Defendants seek an order requiring Plaintiff to amend the Complaint to state with greater specificity the factual bases for many of his claims.
II. BACKGROUND
Plaintiff alleges that between September 1998 and May 1999, during school hours and on school grounds, he was subjected to harassment, discrimination, intimidation and physical abuse based on his gender and perceived sexual orientation. Complaint at 4-5, ¶ 15. The alleged physical abuse included being raped three times by a 16-year-old student who forced O.H. to leave campus at knife point. Id. at ¶ 17. Plaintiff further alleges that the school district took no action to prevent the harassment or protect O.H., even though O.H. and his mother complained to school officials about the problem on an almost daily basis, and made specific complaints about instances of molestation of O.H. by the same student who eventually raped him. Id. at 6, ¶ 20. According to the Complaint, "Defendants specifically told Plaintiff to 'be a man' and just deal with it," id. at 5, ¶ 15. In contrast, Plaintiff alleges, when female students have complained about harassment, Defendants have instituted corrective measures. Id. at 5, ¶ 16.
Plaintiff asserts the following claims in his Complaint:
CLAIM ONE: 42 U.S.C. § 1983 (denial of equal protection under Fourteenth Amendment based on sex): Against the following defendants in their individual capacities:
a. Superintendent Quan
b. Principal Jasper
c. Vice-Principal Castro
d. Assistant Principal Holloway
e. Board of Education Members: Hodge, Rice, Kariya, Harrison, Quan, Gallo and Siegel
CLAIM TWO: 42 U.S.C. § 1983 (denial of equal protection under Fourteenth Amendment based on perceived sexual orientation): Against same defendants as in Claim One, in their individual capacities.
CLAIM THREE: 42 U.S.C. § 1983 (denial of due process under Fourteenth Amendment): Against same defendants as in Claim One, in their individual capacities.
CLAIM FOUR: 42 U.S.C. § 1983 (conspiracy): Against same defendants as in Claim One, in their individual capacities.
CLAIM FIVE: Title IX ( 20 U.S.C. § 1681-1688): Against the following defendants:
a. OUSD
b. Superintendent Quan (individual capacity)
c. Principal Jasper (individual capacity)
d. Vice-Principal Castro (individual capacity)
e. Assistant Principal Holloway (individual capacity)
f. Board of Education Members: Hodge, Rice, Kariya, Harrison, Quan, Gallo and Siegel (individual capacities)
CLAIM SIX: 42 U.S.C. § 1983 (violation of civil rights): Against same defendants as in Claim One, in their individual capacities.
CLAIM SEVEN: 42 U.S.C. § 1986 (neglect to prevent): Against same defendants as in Claim One, in their individual capacities.
CLAIM EIGHT: California Constitution, Art. 1, § 7(a) (denial of equal protection on the basis of sex): Against the following defendants:
a. OUSD
b. Superintendent Quan
c. Principal Jasper
d. Vice-Principal Castro
f. Board of Education Members: Hodge, Rice, Kariya, Harrison, Quan, Gallo and Siegel
CLAIM NINE: California Constitution, Art. 1, § 7(a) (denial of equal protection on the basis of perceived sexual orientation): Against the following defendants:
a. OUSD
b. Superintendent Quan
c. Principal Jasper
d. Vice-Principal Castro
e. Assistant Principal Holloway
f. Board of Education Members: Hodge, Rice, Kariya, Harrison, Quan, Gallo and Siegel
CLAIM TEN: Cal. Civ. Code § 51 (deprivation of civil rights): Against same defendants as in Claim One, in their individual capacities.
CLAIM ELEVEN: Cal. Civ. Code § 51.7 (freedom from violence): Against same defendants as in Claim One, in their individual capacities.
CLAIM TWELVE: Educ. Code §§ 200, 212.5, 220, 230 and 231.5 (sex discrimination): Against OUSD only.
CLAIM THIRTEEN: Declaratory relief: Against the following defendants:
a. OUSD
b. Superintendent Quan (official capacity)
c. Principal Jasper (official capacity)
d. Vice-Principal Castro (official capacity)
e. Assistant Principal Holloway (official capacity)
f. Board of Education Members: Hodge, Rice, Kariya, Harrison, Quan, Gallo and Siegel (official capacities).
Defendants make the following arguments in this motion:
1. Eleventh Amendment Immunity (Claims Eight, Nine and Twelve): Defendants assert that the Eighth, Ninth and Twelfth Claims should be dismissed as to OUSD because the school district is a state agency and therefore immune from suit in federal court on these claims under the Eleventh Amendment.
2. Failure to Plead Conspiracy with Specificity and Intra-Corporate Conspiracy Doctrine (Claims Four and Seven): Defendant asserts that the Fourth and Seventh Claims should be dismissed because they do not allege specific facts and on the basis of the intra-corporate conspiracy doctrine.
3. Failure to Meet Heightened Pleading Standard as to Individual Capacity Claims (Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Thirteen): Defendants assert that a heightened pleading standard applies to the claims against the individual Defendants in their individual capacities because they must be provided sufficient notice of the alleged misconduct to raise a qualified immunity defense. Defendants also assert that it is unclear which claims are brought against Defendants in their individual capacities and which are brought in their official capacities and therefore include all the claims that name individual Defendants, whether or not the claims state that they are individual or official capacity claims.
4. Failure to Allege Constitutionally Protected Interest (Claims Two and Three): Defendants assert that the right to be free from discrimination and harassment on the basis of perceived sexual orientation is not a constitutionally protected interest and therefore cannot give rise to a claim based on the Clause of the Fourteenth Amendment. Defendants also assert that Plaintiff's Third Claim, for violation of due process, must be dismissed because there are no allegations supporting a deprivation of procedural due process, and Plaintiff has alleged no deprivation of a life, liberty or property interest, required to sustain a substantive due process violation.
III. ANALYSIS A. Eleventh Amendment Immunity
Defendants assert that this court does not have jurisdiction over Plaintiff's Eighth, Ninth and Twelfth Claims because the school district is immune from suit in federal court under the Eleventh Amendment. Motion at 3. Defendants cite to Belanger v. Madera Unified School Dist., 963 F.2d 248 (9th Cir. 1992) in support of their position. Plaintiff, on the other hand, asserts that Belanger is distinguishable from this case because it did not involve any state causes of action, whereas Plaintiff's Claims Eight, Nine and Twelve are brought under state law. Opposition at 2. Defendants are correct that the school district is immune from suit in federal court, whether the claims are based upon state or federal law.In Belanger, the Ninth Circuit considered whether a California school district is a state agency for the purposes of the Eleventh Amendment. The court examined the following factors in making its determination: 1) whether a money judgment would be satisfied out of state funds; 2) whether the school district performs "central governmental functions"; 3) whether the school district may sue or be sued; 4) whether the school district has the power to take property in its own name or only that of the state; 5) the corporate status of the entity. Belanger, 963 F.2d at 250-251 (applying five-part test articulated in Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988)). The court looked to California law to determine whether these factors supported a finding that California school districts are state agencies. Id. at 251-254. The court concluded that California school districts are state agencies and therefore are immune from suit in federal court. Id. at 254.
There is no authority to support Plaintiff's suggestion that here, in contrast to Belanger, Eleventh Amendment immunity does not apply because only state law claims are asserted against the school district.
To the contrary, both the Supreme Court and the Ninth Circuit have made clear that the rationale for Eleventh Amendment immunity applies with particular force to state law claims. See Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1326 (9th Cir. 1991) (dismissing state law claims against state defendants on Eleventh Amendment grounds and stating that "'it is difficult to think of a greater intrusion on state sovereignty than when federal courts instruct state officials on how to conform their conduct to state law'" (quoting Pennhurst State School Hospital v. Halderman, 465 U.S. 89 (1984))).
Therefore, Claims Eight, Nine and Twelve are DISMISSED, as to OUSD only, on the basis of 11th Amendment immunity.
B. Conspiracy Claims
As a preliminary matter, although Plaintiff states in his complaint that he is bringing his Fourth claim, for conspiracy, under § 1983, he stipulated at oral argument that he intended to assert this claim for conspiracy under 42 U.S.C. § 1985 (3), and the Court therefore construes it as such.
Defendants make two arguments as to Plaintiff's § 1985 and 1986 claims (Claims Four and Seven). First, Defendants assert that these claims are barred by the intra-corporate conspiracy doctrine.
This section provides, in relevant part, as follows:
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of the equal privileges and immunities under the laws . . .; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985(3).
This section provides in relevant part:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects are refuses to do so, if such wrongful act be committed, shall be liable to the party injured, or his legal representative, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. . . .42 U.S.C. § 1986.
Second, Defendants assert that the claims should be dismissed because the allegations of conspiracy are not supported by specific facts.
1. Intra-Corporate Conspiracy Doctrine
Section 1985(3) prohibits two or more persons from conspiring to deprive any person of Equal protection of the laws or of equal privileges and immunities. Defendants argue that the Defendants named in Plaintiff's Fourth and Seventh claims are all agents and employees of a single entity — the school district — and therefore cannot be conspirators. Defendants draw on the intra-corporate conspiracy doctrine, which provides that "a corporation or enterprise cannot conspire with its agents acting within the scope of their employment." Washington v. Duty Free Shoppers, 696 F. Supp. 1323, 1325 (N.D.Cal. 1988) (J. Orrick). This Court rejects Defendants' contention that the intra-corporate doctrine applies to conspiracy claims brought under the civil rights statutes.
The intra-corporate conspiracy doctrine was first developed in an anti-trust case, Nelson Radio Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925 (1953).
There, the plaintiff alleged that a corporation had conspired with its president, its sales managers, and other agents and employees to restrain trade, in violation of the Sherman Act, 15 U.S.C. § 1. Id. at 913. The court rejected the claim, reasoning that "a corporation cannot conspire with itself any more than a private individual can" because the acts of the agents and employees of a corporation acting within the scope of employment are the acts of the corporation itself. Id. at 914.
Some Circuits have adopted the intra-corporate conspiracy doctrine in the civil rights context. See, e.g., Hermann v. Moore, 576 F.2d 453 (2d Cir.), cert. denied, 439 U.S. 1003 (1978), Buschi v. Kirven, 775 F.2d 1240, 1251-52 (4th Cir. 1985), Hull v. Cuyahoga Valley Joint Vocational School District, 926 F.2d 505 (6th Cir.), Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972), Bond v. IMFS, 727 F.2d 770 (8th Cir. 1984). However, a number of circuits have rejected the extension of the intra-corporate conspiracy doctrine to claims under § 1985(3). See, e.g., Stathos v. Bowden, 728 F.2d 15, 20-21 (1st Cir. 1984), Novotny v. Great American Fed. Savings Loan Assn., 584 F.2d 1235, 1256-1259 (3d Cir.) (en banc), rev'd on other grounds, 442 U.S. 366, Dussouy v. Gulf Coast Investment, 660 F.2d 594, 603 (5th Cir. 1981), United States v. Hartley, 678 F.2d 961, 971-972 (11th Cir. 1982). The Ninth Circuit has explicitly declined to reach this issue. See Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993). The Supreme Court has also left the issue unresolved, although it has recognized the split in authority. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775 n. 24 (1984). District courts within the Ninth Circuit and this court have split on this issue.
Defendants point to a recent decision from the Central District of California, Hoefer. v. Fluor Daniel, Inc., 50 F. Supp.2d 975 (C.D.Cal. 1999), in which the court concluded that the intra-corporate conspiracy doctrine applies to § 1985 claims. There, plaintiff asserted that defendant Fluor Daniel and various employees of Fluor, conspired to retaliate against the plaintiff for bringing a False Claims Act proceeding. Id. at 976. In holding that plaintiff's conspiracy claim was barred by the intra-corporate conspiracy doctrine, the court reasoned that the logic of Nelson (that the acts of the agents and employees are all acts of the corporation, which, like an individual, cannot conspire with itself) is equally applicable in the context of civil rights. Id.
Similarly, in Rabkin v. Dean, 856 F. Supp. 543, 551 (N.D.Cal. 1994), a judge of this court held that Plaintiff's conspiracy claim under § 1985(3) was barred by the intra-corporate conspiracy doctrine. Id. There, the plaintiff — a Berkeley city auditor — alleged that a majority of the city council had voted to deny her various salary increases because of her political affiliations, as part of a conspiracy to remove her from office. Id. at 546. Judge Wilken explained that the doctrine was applicable because "[i]t defies common sense to render the same conduct for which a government entity is held liable, i.e., the official votes of individual council members, as separate acts accomplished by separate conspiratorial actors other than the government entity." Id. at 551. Judge Wilken went on to note that plaintiff's § 1983 claim against the city provided adequate redress. Id. In Welsh v. City and County of San Francisco, 1995 WL 415127 (N.D.Cal. 1995), Judge Jensen adopted the same reasoning in a sex discrimination case against the City and County of San Francisco. After discussing the split of authority, Judge Jensen stated that he found the line of cases, including Rabkin, that hold that a corporation cannot conspire with itself, to be most persuasive. Id. at *3. He went on to note that "[s]ection 1985 is solely a remedial statute. It is therefore consistent with the purposes of Section 1985 to apply the intra-corporate conspiracy doctrine where adequate alternative remedies exist." Id.
In contrast, in Washington v. Duty Free Shoppers, 696 F. Supp. 1323 (N.D.Cal. 1988), Judge Orrick held that the intra-corporate conspiracy doctrine should not be extended to § 1985 claims. Judge Orrick began his analysis by looking to the justifications for the intra-corporate conspiracy doctrine in the anti-trust context:
Antitrust conspiracies, however, are a unique breed. Antitrust laws were designed to promote competition. By prohibiting conspiracies in restraint of trade, antitrust laws focus on collaboration among competitors. Agreements between agents of a single business do not give rise to the evils that anti-trust laws seek to prevent. Thus, courts traditionally have not treated concerted action within a corporation as establishing an anti-trust conspiracy. . . . Moreover, in the antitrust context actions within a single business are presumed to be procompetitive, and, therefore, beneficial to society.
Id. at 1326. Judge Orrick explained that it was because of these characteristics of anti-trust law that the intra-corporate conspiracy doctrine had been held to be appropriate, quoting the Supreme Court's decision in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) (holding that a parent corporation and its wholly owned subsidiary are not capable of conspiring with one another under § 1 of the Sherman Act):
[I]t is perfectly plain that an internal 'agreement' to implement a single, unitary firm's policies does not raise the anti-trust dangers that § 1 was designed to police. The officers or a single firm are not separate economic actors pursuing separate economic interests, so agreements among them do not suddenly bring together economic power that was previously pursuing divergent goals . . . For these reasons, officers and employees of the same firm do not provide the plurality of actors imperative for a § 1 conspiracy.
Id. at 1326 (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984)).
Judge Orrick reasoned that this rationale does not apply in the civil rights context. To the contrary, "[t]here is no reason to believe that discrimination by an individual business is less harmful than discrimination by multiple businesses, or that discrimination by a single business deserves to be protected because it confers any benefit on society." Id. Finally, Judge Orrick noted that neither the language of § 1985 (which simply requires action by "two or more persons") nor anything in the legislative history support the conclusion that this provision should be limited by "engrafting the intracorporate conspiracy doctrine onto [it]." Id at 1327.
Similarly, in Rebel Van Lines v. City of Compton, 663 F. Supp. 786 (C.D.Cal. 1987), Judge Pfaelzer rejected the application of the intra-corporate conspiracy doctrine to § 1985(3) claims. That case arose from the refusal of the city to sell plaintiff a parcel of city-owned land adjacent to plaintiff's current location, which plaintiffs alleged was based upon race. Id. at 787. Plaintiff Rebel Van Lines was owned by a white man and a Native American woman. Id. Plaintiff alleged that the City of Compton was dominated by blacks. Id. Plaintiff sued both the City of Compton and various employees of the city, asserting, among other things, a claim under 42 U.S.C. § 1985(3). Id. The court rejected Defendants' argument that Plaintiff's conspiracy claim should be dismissed based on the intra-corporate conspiracy doctrine.
First, the court addressed one of the early cases in which the intra-corporate conspiracy doctrine was applied in the civil rights context, Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972). That case involved a real estate company which refused to lease office space to a civil rights lawyer based on the race of the lawyer's clients. Id. at 790. The court in that case held that when two business executives make a single business decision to discriminate in furtherance of the business, this decision cannot be a conspiracy for the purposes of § 1985(3). Id.
In Rebel Van Lines, the court questioned the vitality of the holding in Dombrowski, pointing to the fact that the Supreme Court declined to adopt its approach in at least two cases in which it could have done so. Id. at 790. In particular, in Great American Federal Savings and Loan v. Novotny, 442 U.S. 366 (1979), the Supreme Court reversed the Third Circuit, which had rejected application of the intra-corporate conspiracy doctrine to § 1985(3), but on other grounds. There, a male employee of a bank asserted a claim under § 1985(3) of conspiracy to violate his rights under Title VII. Id. at 368-369. The Third Circuit reversed the district court's dismissal of this claim on the basis of the intra-corporate conspiracy doctrine, reasoning that nothing in the policies underlying § 1985(3) supported immunizing an agreement to discriminate between employees of a business simply because it was incorporated. Great American Federal Savings and Loan v. Novotny, 584 F.2d 1235, 1257 (3d Cir. 1978) (en banc). The Supreme Court reversed on the basis that a claim under § 1985(3) may not be based upon an alleged conspiracy to violate Title VII because allowing such a claim would result in plaintiffs bypassing the statutory scheme established for Title VII cases, without reaching the intra-corporate conspiracy doctrine.
Similarly, in United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825 (1983), the Court dismissed plaintiffs claims that the union and the union council had conspired under § 1985(3), but declined to apply the intra-corporate conspiracy doctrine.
The court in Rebel Van Lines went on to address the analytical soundness of Dombrowski/ 663 F. Supp. at 792. First, Dombrowski purported to limit its holding to situations in which the business made only a single decision to discriminate. However, as the court in Rebel Van Lines pointed out, this distinction is of little significance, given that the defining characteristic of a conspiracy "is an agreement to commit wrongful acts, not the number of wrongful acts committed to further the agreement." Id. Further, "aside from antitrust, there is no other body of law in which the fact that two or more people make an agreement in furtherance of their business purpose takes that agreement out of conspiracy law." Id.
Moreover, "[u]nlike the area of antitrust, where actions by a single business are presumed to be procompetitive and therefore beneficial to society, there is no reason to believe that discrimination by a single business is less harmful than discrimination by multiple businesses, or that discrimination by a single business deserves to be protected because it confers any benefit on society." Id.
Finally, the court in Rebel Van Lines reasoned that even if Dombrowski were still good law in the context of conspiracy within a private business, it cannot be applied to conspiracies within governmental entities. Id. As justification for this conclusion, the court pointed out that the Supreme Court has routinely applied the criminal version of § 1985 to conspiracies within governmental entities. Id. (citing to United States v. Price, 383 U.S. 787, 796-807 (1966) (upholding the indictment of members of a single police force under § 241 on the basis of conspiracy to deprive plaintiffs of their Fourteenth Amendment right to substantive due process), United States v. Williams, 341 U.S. 58 (1951) (same), Screws v. United States, 325 U.S. 91 (1945) (same), United States v. Classic, 313 U.S. 299 (1941) (holding that under § 241 the Commissioners of Elections could be liable for conspiracy where it was alleged that the Commissioner altered ballots and falsely certified the vote count in conducting primary election)). This Court agrees with the reasoning of Washington v. Duty Free Shoppers and Rebel Van Lines.
The criminal law counterpart of § 1985(3) provides as follows:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured — They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.18 U.S.C. § 241.
The place to start in analyzing the scope of the statute is, of course, the language of the statute itself.
By its terms, § 1985(3) forbids conspiracies of "two or more persons." 42 U.S.C. § 1985(3). There is nothing in this language itself which suggests that Defendants here — who are undeniably persons — should be exempted from the scope of the language. Indeed, in the context of 18 U.S.C. § 241, the Supreme Court has repeatedly upheld the applicability of that conspiracy statute to employees of a singe government entity. Both § 241 and § 1985(3) provide that conspiracies by "two or more persons" engaged in certain conduct in connection with the victim's federal statutory or constitutional rights are prohibited. There is no reason to suspect that the Supreme Court would adopt a different approach in the context of a civil action.
Indeed, as described by the court in Rebel Van Lines, the Supreme Court has on multiple occasions, despite the opportunity, not applied intra-corporate conspiracy doctrine in the context of civil actions under § 1985(3).
Finally, the intra-corporate conspiracy doctrine represents an exception to the general law of conspiracy. This exception was developed in response to the specific policy goals underlying the federal anti-trust laws. Those policy considerations do not exist in the civil rights context. Indeed, it would be a particularly unusual exception to engraft on to § 1985. If the intra-corporate conspiracy doctrine applied to § 1985 claims, then one could never bring a § 1985 conspiracy claim against public employees and their employers for violation of constitutional rights under § 1983 in the absence of a conspiracy between employees of different public entities. Or, put differently, this approach would immunize official policies of discrimination from scrutiny under § 1985. Rebel Van Lines, supra, 663 F. Supp. at 792-93.
Accordingly, an extension of the intra-corporate conspiracy doctrine to § 1985(3) (and § 1986) is unwarranted.
It is also important to note that the holding in this matter is limited to the specific facts of this case:
Plaintiff seeks to hold the individual defendants liable in their individual capacities for conspiracy under § 1985(3) and under § 1986. Complaint, Claims Four and Seven. The entity for which those individuals work — the school district — is not a defendant in these conspiracy claims. As a result, the Court has no occasion to address the question of whether the entity could be held liable for conspiracy under § 1985(3) with its employees.
2. Specific Facts
Defendants also assert that the claims brought under §§ 1985 and 1986 should be dismissed for failure to allege specific facts in support of these claims. Motion at 7-8. The Ninth Circuit has directly addressed pleading requirements under § 1985 and has held that "[a] claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988). A Plaintiff must allege specific facts with respect to the following requirements for claims brought under § 1985(3):
(1) a conspiracy; 2) for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of this conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. . . . Further, the second of these four elements requires that in addition to identifying a legally protected right, a plaintiff must demonstrate a deprivation of that right motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action.'
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting Griffith v. Breckenridge, 403 U.S. 88, 102 (1971)).
In some more recent cases, the Ninth Circuit has also relied on Branch I and the line of cases that have followed that case to reach the same conclusion. See, e.g., Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997) (holding that heightened pleading standard adopted in Branch I applied to Bivens claim that defendants conspired to deprive plaintiff of constitutional rights). The Branch I line of cases will be discussed below.
Here, Plaintiff has alleged no specific facts showing that Defendants conspired to deprive him of his rights. Therefore, Plaintiff's Fourth Claim is DISMISSED as to all Defendants with leave to amend to allege specific facts — based upon either direct or circumstantial evidence — in support of his conspiracy claim. Further, because a valid claim can be stated under § 1986 only if a valid § 1985 claim is stated, Claim Seven is also DISMISSED as to all Defendants with leave to amend. Id. If Plaintiff is able to amend his § 1985(3) claim to allege conspiracy with sufficient specificity, Claim Seven shall be reinstated.
C. Equal Protection and Due Process Claims 1. Equal Protection Claim
Defendants assert that there is no right to be free from harassment or discrimination based upon perceived sexual orientation and therefore that Plaintiff's Second Claim should be dismissed. There is a constitutional right to be free from discrimination on the basis of sexual orientation. Defendants' motion is DENIED as to Plaintiff's Second Claim.
The Equal Protection Clause provides that no state shall "deny any person within its jurisdiction the equal protection of the laws." U.S. Const. Amendment XIV, § 1. The Supreme Court has noted that the Equal Protection Clause "is basically a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Where disparate treatment of a group is shown, the level of scrutiny to which the state's action is subjected depends upon the type of group classification at issue. Id. at 439-443. The general rule is that a state action that neither burdens a fundamental right nor targets a suspect class will be upheld so long as it bears a rational relation to some legitimate end. Romer v. Evans, 517 U.S. 620, 631 (1996) (applying rational basis test to a Colorado law specifically aimed at homosexuals and holding that law did not satisfy test). Because homosexuals are not considered to be a suspect class, state action that treat homosexuals less favorably than other groups must advance some legitimate government interest. Id.
It cannot be disputed that discrimination on the basis of sexual orientation can state a claim under the Equal Protection Clause. In Romer, the Supreme Court struck down on the basis of the Equal Protection Clause a Colorado law which attempted to invalidate all state laws protecting homosexuals and to prohibit the adoption of any future laws intended to protect the rights of homosexuals. The Court concluded that the law bore no rational relation to any legitimate end. Id at 635.
A number of district courts and courts of appeals have also held that a plaintiff may recover under § 1983 for discrimination based upon sexual orientation in violation of the Equal Protection Clause. For instance, in Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), the court held that the district court had improperly dismissed on summary judgment plaintiff's Equal protection claim based on sexual orientation where the plaintiff student alleged (and presented evidence) that he had been harassed over a long period of time on the basis of his sexual orientation by another student and that although he and his parents had repeatedly complained to school officials, the school took no action to protect the student. Similarly, in Glover v. Williamsburg Local School Dist. Bd. of Educ., 20 F. Supp.2d 1160 (S.D.Ohio 1998), the court held that the board of education had violated a teacher's right to Equal protection where it fired the teacher on the basis of his sexual orientation. In reaching this conclusion, the court rejected the defendants' argument that the Equal Protection Clause does not prohibit discrimination on the basis of sexual orientation. Id. at 1169. It noted that "a state action which discriminates against homosexuals and is motivated solely by animus towards that group necessarily violates the Equal Protection Clause." Id. See also Weaver v. Nebo School Dist., 29 F. Supp.2d 1279 (D.Utah 1998) (holding that decision not to assign teacher to position of volleyball coach based on her sexual orientation had no rational basis and violated Equal Protection Clause).
Here, the allegation is that Defendants discriminated against Plaintiff based on his perceived sexual orientation. Defendants do not argue here that this alleged discrimination was rationally related to a legitimate goal. As a result, the Second Cause of Action is adequately pleaded.
In the motion, Defendants make no specific reference to the fact that the title of the Second Claim for the Relief is "Equal Protection on the basis of (perceived) sexual orientation,"(emphasis supplied) and for good reason. The Second Claim for Relief specifically claims that Plaintiff was deprived of equal protection of laws on the basis of "sexual orientation or perceived sexual orientation . . ." At this stage of the case, Plaintiff has clearly alleged discrimination on the basis of both sexual orientation and perceived sexual orientation.
Moreover, Defendants have cited no case which suggests that the distinction between "perceived" and actual sexual orientation is significant for the constitutional analysis.
2. Substantive Due Process
Defendants assert that Plaintiff has failed to allege a due process violation because he has not alleged deprivation of any life, liberty, or property interest. Because this Court finds that Plaintiff has sufficiently alleged a violation of substantive due process, Defendants' motion is DENIED as to Claim Three.
Defendants also assert that Plaintiff has not alleged a procedural due process violation. However, Plaintiff conceded in oral argument that he is not alleging a procedural due process violation.
The Supreme Court has held that the state's failure to protect an individual from a deprivation of life, liberty or property by another does not constitute a violation of due process, even though the state may not itself deprive the individual of life, liberty or property without due process. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196 (1989). Although there is an exception to this rule where "the state takes a person into its custody and holds him there against his will," id. at 200, that exception has not been held to apply to students attending public school. Thus, courts have rejected substantive due process claims based upon the failure of the school district to protect a student from discrimination, harassment, or even physical harm. See J.O. v. Alton Community Unit School District 11, 909 F.2d 267 (7th Cir. 1990) (affirming dismissal of substantive due process claim based on allegation that school district did nothing to prevent molestation of student by teacher); Nabozny, 92 F.3d at 458-460 (affirming dismissal of plaintiff's substantive due process claim against school officials on basis that Due Process Clause does not impose an affirmative duty to protect students).
On the other hand, where a plaintiff alleges some affirmative act that resulted in deprivation of a liberty interest, a substantive due process claim may be stated. For instance, in Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1988), a student alleged that various school officials had not only failed to act in order to prevent sexual misconduct by a teacher, but had actually pursued policies which "encouraged a climate to flourish where innocent girls were victimized." Id. at 729. Id. Noting that mere failure to act cannot be the basis for liability under the Due Process Clause, the court held that the superintendent was entitled to qualified immunity because Plaintiff alleged nothing more than inaction as to this defendant and the record contained no evidence of affirmative acts by the superintendent that could have encouraged the misconduct. Id. at 731. However, as to two other officials, the court denied qualified immunity on the basis that the record contained some evidence that could lead a jury to conclude that these officials actually encouraged the sexual misconduct. Id. at 729. For instance, the plaintiff alleged that these officials discouraged complaints about sexual misconduct and that one teacher forced her to apologize for complaining about the misconduct. Id.
Here, Plaintiff has alleged that Defendants not only failed to take remedial action but affirmatively encouraged the misconduct when they told Plaintiff that he should "'be a man' and just deal with it" in response to his complaints about harassment. Moreover, because a substantive due process claim does not involve an element of subjective intent, the heightened pleading standard of Branch I (discussed below) does not apply. Therefore, this Court finds that Plaintiff has sufficiently alleged a substantive due process claim and Defendants' motion is DENIED as to Claim Three.
D. Heightened Pleading Standard
Defendants cite to two lines of authority in support of their assertion that most of Plaintiff's claims should be dismissed because they are vague and unsupported by sufficient facts. First, Defendants point to Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999), a Title IX case involving the alleged failure to protect a student from harassment by another student. Second, Defendants rely on two Ninth Circuit cases involving the application of a heightened pleading standard to § 1983 claims involving subjective intent. See Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (Branch I), Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (Branch II).
Defendants also assert that the Complaint is ambiguous as to whether or not the individual Defendants are being sued in their individual capacities or their official capacities. Motion at 5-6. As to the federal causes of action (Claims One through Seven), and as to the California statutory violations and the Declaratory Relief Claim, this is incorrect: each claim specifically identifies whether the individual Defendants are sued in their individual capacities or in their official capacities. The only claims that do not identify the capacity in which the individual Defendants are sued are Claims Eight and Nine. Defendants do not identify any reason why, under these California claims, such an identification is necessary.
1. Davis v. Monroe County Board of Education
Defendants argue, relying on Davis v. Monroe County Board of Education, that Plaintiff's Title IX and § 1983 claims should be dismissed because they do not adequately allege that the harassment occurred on school grounds during school hours, and therefore it is not clear that the Defendants exercised significant control over the harasser. Motion at 6-7. In Davis, plaintiff, a fifth grade student attending public school, alleged that she was repeatedly harassed by another student and that the school board was deliberately indifferent to complaints about the student, resulting in an intimidating, hostile and offensive school environment, in violation of Title IX. The Supreme Court reversed the Eleventh Circuit's dismissal of plaintiff's claim, holding that a school district can be liable for violating Title IX where it is deliberately indifferent to known acts of harassment of one student by another. Id. at 1671. The Supreme Court emphasized, however, "[d]eliberate indifference makes sense as a direct theory of liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable where it lacks the authority to take remedial action." Id. On this basis, the Court held that the school board exercised substantial control over the harasser because the misconduct occurred on school grounds during school hours. Id. at 1672.Here, Defendant asserts that Plaintiff's Complaint is vague as to whether the misconduct occurred on or off campus, asserting that the Complaint is "vague as to when and where the alleged wrongful events occurred." Motion at 6-7. In particular, Defendants point to ¶ 17 of Plaintiff's Complaint, which states as follows:
Plaintiff was subjected to continual harassment and discriminatory treatment on the basis of his sex and perceived sexual orientation, including but not limited to the following:
a. From September 1998 to Approximately May 1999 Plaintiff O.H. was repeatedly referred to as "queer," "faggot," "gay-faggot" and "fag."
b. From September 1998 to approximately May 1999, Plaintiff was repeatedly beaten up (on ¶ or 7 occasions) because of his perceived sexual orientation.
c. Plaintiff received many physical attacks which eventually led to three instances of rape by another student, I.J. I.J. was eventually convicted of several felonies including rape of O.H. in a juvenile proceeding.
Complaint at 5, ¶ 17.
Although Plaintiff does not specify in Paragraph 17 of his complaint where the alleged events occurred, he does address this issue elsewhere in the Complaint. In particular, he alleges in Paragraph 2 of the Complaint as follows:
Plaintiff O.H. attended a public school controlled and managed by OUSD. While attending these schools, O.H. experienced severe, pervasive and objectively offensive harassment based upon his sex and perceived sexual orientation. Plaintiff was harassed routinely in school both verbally and physically. There were numerous incidents of verbal harassment which occurred on a nearly daily basis beginning in or about September 1998 and continuing until he was forced to leave the school prior to the 1999 term. This verbal harassment occurred in hallways, classrooms, bathrooms and school grounds. O.H. also suffered from physical harassment including physical confrontations with other students. These confrontations occurred approximately 6-7 times and many of these instances occurred on school grounds. Finally, O.H. was coerced off campus by one of his harassers, I.J., who then raped him three times. While the actual rapes occurred off-campus, O.H. was threatened by I.J. that if he did not leave campus with him, I.J. would kill him. The rapist also produced a knife that he showed to O.H. Defendants, who had the authority to institute corrective measures, were aware of the harassment, yet repeatedly and intentionally failed to take appropriate or necessary measures to stop the abuse suffered by plaintiff.
Complaint at 1-2, ¶ 2. Given that Plaintiff has alleged that he was repeatedly harassed, both physically and verbally, while on campus, during school hours, this Court concludes that Plaintiff has sufficiently alleged that Defendants exercise substantial control over the harasser.
2. Pleading Requirements under Branch I
As to all but the Twelfth claim, Defendants also assert that Plaintiff has not met the heightened pleading standard adopted by the Ninth Circuit for certain types of § 1983 claims in Branch I. In Branch I, the plaintiff brought a Bivens action against a government agent who, plaintiff alleged, deliberately falsified an affidavit in order to obtain a warrant to search plaintiff's home and office. 937 F.2d 1382, 1383-1384 (9th Cir. 1991). The complaint alleged merely that the affidavit contained incorrect information that the agent knew, or should have known, was incorrect. Id. at 1384. The agent asserted that he was entitled to qualified immunity, arguing that the plaintiff had failed to allege sufficient facts to establish a violation of a statutory or constitutional right. Id. The Ninth Circuit agreed, holding that in order to have alleged a constitutional violation, the plaintiff should have "pointed out specifically the portion of the warrant affidavit that is claimed to be false . . . and allege[d] some facts tending to show that the defendant was aware or should have been aware of the falsity of those statements." Id. at 1387. More broadly, the court held that "a heightened pleading standard [applies] in cases in which subjective intent is an element of a constitutional tort action." Id. at 1386.
In justifying the adoption of a heightened pleading standard to constitutional torts involving subjective intent, the court noted that the doctrine of qualified immunity seeks to shield government officials from the intrusiveness and expense associated with judicial inquiry into their subjective motivations. Id.
This is reflected in the doctrine of qualified immunity, which focuses on objective reasonableness. Id. This protection is substantially reduced, however, if an official must demonstrate in a case involving subjective intent that he did not act with improper purpose in order to establish qualified immunity. Therefore, the court held, a bare allegation of improper purpose on the part of a government official is insufficient to subject that official to discovery and the other burdens of litigation. Id. at 1386. The court emphasized, however, that the heightened pleading requirement may be satisfied by circumstantial evidence rather than direct evidence. 937 F.2d at 1386. The court explained that "[b]ecause evidence of intent is largely within the control of the defendant and often can be obtained only through discovery, we are unwilling to require a plaintiff to present direct evidence of that intent in order to avert dismissal." Id.
Two years later, the Supreme Court addressed the issue of heightened pleading standards — which a number of other circuits had also adopted for § 1983 claims — in § 1983 actions involving municipal liability. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). There, plaintiffs were two homeowners who brought § 1983 claims against the city and various city officials on the basis of searches that they alleged were in violation of their Fourth Amendment rights, and which they further alleged were the result of the city's failure to adequately train their officers. Id. at 164-165. The District Court for the Northern District of Texas dismissed the action on the basis of the Fifth Circuit's heightened pleading standard for § 1983 actions, and the Fifth Circuit affirmed. The Supreme Court reversed, rejecting the Fifth Circuit's application of a heightened pleading standard to § 1983 claims against municipalities (including claims against government officials in their official capacity).
Id. at 168. The Court reasoned that "it is impossible to square the 'heightened pleading standard' applied by the Fifth Circuit in this case with the liberal system of notice pleading set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 168. In reaching this conclusion, the Court rejected the argument advanced by the defendants that "a more relaxed pleading requirement would subject municipalities to expensive and time consuming discovery in every § 1983 case, eviscerating their immunity from suit and disrupting municipal functions." Id. at 166. Noting that municipalities, in contrast to officials sued in their individual capacity, are not entitled to qualified immunity, the Court explicitly declined to consider whether its "qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." Id. at 166-167.
Following Leatherman, the Ninth Circuit in Branch II revisited the question of whether a heightened pleading requirement was appropriate in § 1983 claims against government officials in their individual capacity where the claim involved subjective intent. Relying on the Supreme Court's statement in Leatherman that its decision did not consider the question of whether heightened pleading standards were appropriate for claims brought against government officials in their individual capacity, the Ninth Circuit in Branch II held that Branch I was still good law. On this basis, the Ninth Circuit and district courts within the Ninth Circuit have applied a heightened pleading standard to § 1983 claims involving subjective intent. See, e.g., Larramendy v. Newton, 994 F. Supp. 1211, 1216-1217 (E.D.Cal. 1998) (holding that heightened pleading standard applied to § 1983 claim based on denial of procedural due process where plaintiffs alleged that defendants intentionally falsified report that was given to prosecutor); Dunn v. City of Eureka, 1999 WL 260969 (N.D.Cal. 1999) (Breyer, J.) (holding that heightened pleading standard applied to allegation that defendants had failed to administer first aid on basis of race and holding that plaintiff had alleged no specific facts that would allow officers to prepare a motion for qualified immunity).
But see Housely v. United States, 35 F.3d 400 (9th Cir. 1994) (holding that heightened pleading standard did not apply to Fourth Amendment claim that defendants had conducted illegal searches and surveillance because in considering an illegal search claim, one looks to the objective reasonableness of the defendant's actions); Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 462 (9th Cir. 1994) (holding that heightened pleading standard did not apply to Fourth Amendment claim of unlawful arrest because in considering unlawful arrest claim, one looks to the objective reasonable-ness of the defendant's actions).
Because the applicability of the heightened pleading standard depends upon the elements of the underlying claim, each of the claims that Defendants challenge on the basis of Branch I is addressed below.
a. Equal Protection Claims (Claims One and Two)
Plaintiff's Equal Protection claims (Claims One and Two) require intentional discrimination, and therefore fall under the heightened pleading standard of Branch I. See Judge v. City of Lowell, 160 F.3d 67 (1st Cir. 1998) (applying heightened pleading standard equivalent to that established in Branch I to Equal protection claim because it requires proof of discriminatory motive). As noted above, the heightened pleading requirement adopted in Branch I does not require direct evidence of discriminatory intent but may be satisfied by circumstantial evidence that raises an inference of discriminatory intent. Branch I, 937 F.2d at 1386. For instance, in Nabozny (discussed above), the Seventh Circuit held that plaintiff had presented sufficient evidence of discriminatory intent to survive summary judgment where he presented evidence "that his classmates harassed and battered him for years and that school administrators failed to enforce their anti-harassment policies, despite his repeated pleas for them to do so." 92 F.3d at 454. The court went on to note that although the plaintiff had not presented overwhelming evidence that the school treated male-on-female harassment differently from male-on-male harassment, the school itself asserted that it aggressively pursued all complaints of harassment, regardless of gender. Id. at 455. On this basis, the court concluded that evidence that the school had failed to follow its own policy with respect to plaintiff raised an inference of discriminatory intent. Id.
Here, Plaintiff has alleged that he complained repeatedly to school officials and that they failed to take any corrective action. Complaint at 5, ¶¶ 15, 19. He also alleges that he was told to "be a man" and just deal with it. Complaint at 5, ¶ 15. Further, he alleges that when female students complained of harassment, the school took corrective measures, but that it did not do so when Plaintiff complained of harassment "because of his sex and Defendants' stereotypical notions of how males should be treated." Complaint at 5, ¶ 16. On this basis, the Court finds that Plaintiff has alleged sufficient facts to raise an inference of discriminatory intent. Therefore, Defendants' motion is DENIED as to Claims One and Two.
b. Substantive Due Process Claim (Claim Three)
As noted above, to establish a violation of substantive due process, a Plaintiff must show that Defendants actively encouraged the harassment in some way. See Stoneking, 882 F.2d at 729-731. Because this inquiry focuses on the acts of the Defendants rather than their subjective motivations, the heightened pleading standard does not apply. Therefore, Defendants' motion is DENIED as to Claim Three.
c. Conspiracy Claims (Claims Four and Seven)
Plaintiff's conspiracy claims clearly involve subjective intent and therefore fall under the heightened pleading requirements of Branch I. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997) (holding that Bivens action alleging conspiracy to deprive plaintiffs of their constitutional rights fell under Branch I heightened pleading requirement). As stated above, Plaintiff has not met this pleading requirement as to his conspiracy claims and these claims are therefore dismissed with leave to amend.
d. Title IX Claim and § 1983 Claim Based on Title IX (Claims Five and Six)
Plaintiff brings a claim based on Title IX directly and a claim under § 1983 based upon an alleged violation of Title IX. In Davis v. Monroe County, 119 S.Ct. at 1671, the Supreme Court held that a plaintiff may recover damages against the school district where school officials were deliberately indifferent to known harassment and where the harassment occurred within their control. In other words, student-on-student harassment is actionable "where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Id. at 1674. Thus, the inquiry involves two key questions: 1) did the school administrator know about the harassment; and 2) was the administrator's response objectively unreasonable in light of the circumstances. Like the cases involving illegal arrests and seizures cited above, this inquiry does not focus on subjective intent but rather, on facts and objective reasonableness. See Housely v. United States, 35 F.3d 400 (9th Cir. 1994) (holding that heightened pleading standard does not apply to Fourth Amendment claim that defendants had conducted illegal searches and surveillance because in considering an illegal search claim, one looks to the objective reasonableness of the defendant's actions); Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 462 (9th Cir. 1994) (holding that heightened pleading standard does not apply to Fourth Amendment claim of unlawful arrest because in considering unlawful arrest claim, one looks to the objective reasonableness of the defendant's actions). Therefore, the heightened pleading standard does not apply and Defendants' motion is DENIED as to Claim Six. Defendants' motion is DENIED as to Claim Five with respect to OUSD. As to Claim Five, Defendants' motion is GRANTED on other grounds (discussed below) as to Defendants Quan, Jasper, Castro, Holloway, Hodge, Rice, Kariya, Harrison, J. Quan, Gallo and Siegel and Claim Five is DISMISSED with prejudice as to these Defendants.
Although Plaintiff does not explicitly state in his complaint that the § 1983 claim alleged in Claim Six is based upon Title IX, he stipulated at oral argument that he intended that Claim Six should be construed as such. See Nicole M. v. Martinez Unified School District, 964 F. Supp. 1369, 1379 (holding that an action under § 1983 based upon an alleged violation of Title IX may state a viable claim).
e. Claims Brought Under California Constitution (Claims Eight and Nine)
In Claims Eight and Nine, Plaintiff brings Equal protection claims under the California Constitution. Defendants assert that Branch I applies to these claims but provide no authority for this assertion.
Therefore, Defendants' motion is DENIED as to Claims Eight and Nine.
f. California Civil Code Claims (Claims Ten and Eleven)
Plaintiff alleges that Defendants violated his rights under Cal. Civ. Code § 51 and 51.7. Defendant includes these claims in the list of claims provided at the beginning and end of their brief (Motion at 2 and 11) that should be dismissed on the basis of the heightened pleading standard of Branch I.
Section 51 provides that "all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
Section 51.7 provides, in relevant, part that "all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute or because another person perceives them to have one or more of these characteristics."
However, elsewhere in the brief, Defendants state that only claims One, Two, Three, Four, Six and Seven fall under Branch I. Motion at 8. Because Defendants do not address in their briefs the pleading requirements for these state law claims or provide any authority for the assertion that these claims are subject to the heightened standard of Branch I, Defendants' motion is DENIED as to Claims Ten and Eleven.
E. Title IX Liability Against Individual Defendants
In Claim Five, Plaintiff asserts a claim under Title IX against the school district, the members of the Board of Education in their individual capacities and against various school officials in their individual capacities. At oral argument, the Court raised the question of whether a claim may be brought against an individual under Title IX, or, alternatively, whether such claims may only be asserted against entities that receive government funding under Title IX. Having received supplemental briefs from the parties on this issue, the Court concludes that Plaintiff may not state a claim under Title IX against the individual Defendants.
As the Supreme Court explained in Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999), under Title IX, "[t]he government's enforcement power may only be exercised against the funding recipient . . . we have not extended damages liability under Title IX to parties outside the scope of this power." Id. at 1670. Plaintiff has not presented any authority for the proposition that individuals who are officials of or employed by an entity that receives funding under Title IX may be sued directly for a violation of Title IX. The single case cited by Plaintiff, Oona R.-S. v. McCaffrey, 143 F.3d 473 (9th Cir. 1996) involves § 1983 claims against school officials in which the underlying federal right is based upon Title IX. Id. at 474. See also Oona R.-S. v. Santa Rosa City Schools, 890 F. Supp. 1452, 1462 (N.D. Cal. 1995) (holding that under § 1983 a plaintiff may state a claim where the underlying federal right is based upon Title IX). In fact, Plaintiff asserts just such a claim in Claim Six of his Complaint. However, Plaintiff may not sue the individual school officials and board of education members directly under Title IX.
Therefore, Claim Five is DISMISSED with prejudice as to Defendants Quan, Jasper, Castro, Holloway, Hodge, Rice, Kariya, Harrison, J. Quan, Gallo and Siegel.
IV. CONCLUSION
For the reasons stated above, the Court hereby orders as follows:
1. Claim One (§ 1983/equal protection on basis of sex): Defendants' motion is DENIED.
2. Claim Two (§ 1983/equal protection on basis of perceived sexual orientation): Defendants' motion is DENIED.
3. Claim Three (§ 1983/substantive due process): Defendants' motion is DENIED.
4. Claim Four (conspiracy under § 1985): Defendants' motion is GRANTED and Claim Four is DISMISSED as to all Defendants with leave to amend to allege specific facts in support of the allegations of a conspiracy.
5. Claim Five (Title IX): Defendants' motion is GRANTED, without leave to amend, as to Defendants Quan, Jasper, Castro, Holloway, Hodge, Rice, Kariya, Harrison, J. Quan, Gallo and Siegel. Defendants' motion is DENIED as to OUSD.
6. Claim Six (§ 1983/Title IX): Defendants' motion is DENIED.
7. Claim Seven (§ 1986): Defendants' motion is GRANTED and Claim Seven is DISMISSED as to all Defendants with leave to amend.
8. Claim Eight (Cal. Constitution/equal protection based on sex): Defendants' motion is GRANTED as to OUSD and Claim Eight is DISMISSED with prejudice as to OUSD. Defendants' motion is DENIED as to all other Defendants.
9. Claim Nine (Cal. Constitution/equal protection based on perceived sexual orientation): Defendants' motion is GRANTED as to OUSD and Claim Eight is DISMISSED with prejudice as to OUSD. Defendants' motion is DENIED as to all other Defendants.
10. Claim Ten (Cal. Civ. Code § 51): Defendants' motion is DENIED.
11. Claim Eleven (Cal. Civ. Code § 51.7): Defendants' motion is DENIED.
12. Claim Twelve (Cal. Educ. Code sections): Defendants' motion is GRANTED and Claim Twelve is DISMISSED with prejudice.
13. Claim Thirteen (declaratory relief): Defendants' motion is DENIED.
IT IS SO ORDERED.