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MONICA REESE, JANEL REESE, CASSI HARR, and CORINA PRUETT, Plaintiffs-Appellants, v. JEFFERSON SCHOOL DISTRICT NO. No. 99-35543 14J; and in their official and individual capacities, JAMES D.C. No. MOSKAL, Superintendent; ROBERT CV-97-1673-MJM TOWER, Principal; DAVID BEYERL, OPINION Vice Principal; STEVE WEDDLE, Director; JEFF GILMOUR, Director; WILLIAM LINHART, Director; GALE CARPENTER, Director; and GAIL CASE, Director, Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Malcolm J. Marsh, District Judge, Presiding
Submitted March 7, 20001
Portland, Oregon
Filed March 29, 2000
Before: Alfred T. Goodwin, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Government Law/Education
The court of appeals affirmed a judgment of the district
court. The court held that a public school district does not vio-
late the Equal Protection Clause by punishing female students
for reported misconduct and not punishing male students for
harassment of which it had no notice.
Appellant Monica Reese and three other senior female stu-
dents at Jefferson High School went into a boys' bathroom
and threw water balloons at boys when they entered. Com-
plaints ensued, and appellee Vice-Principal David Beyerl sus-
pended the girls. This prevented them from participating in
the commencement ceremony a few days later.
The girls sued appellee Jefferson School District under
Title IX and 42 U.S.C. S 1983. The complaint alleged that the
District was liable for harassment allegedly committed by the
boys during the year, and for excluding the plaintiffs from
commencement. The girls contended that the District violated
their rights under the Equal Protection Clause because it pun-
ished them for their infraction, but did not punish the boys for
their misconduct.
The district court granted summary judgment for the defen-
dants. The girls appealed.
[1] A school district may be liable in damages under Title
IX only when it subjects its students to harassment. [2] Liabil-
ity is limited to when the district exercises substantial control
over both the harasser and the context in which known harass-
ment occurs. [3] A district can be liable only when the plain-
tiff suffers sexual harassment that is so severe, pervasive, and
objectively offensive as to deprive the victims of access to
educational opportunities or benefits. [4] A district can be lia-
ble only where it has actual knowledge of the harassment, and
[5] if it does not engage in harassment directly, its deliberate
indifference subjects students to harassment.
[6] Jefferson School District was not liable. [7] The plain-
tiffs did not report the harassment until after they were threat-
ened with disciplinary action. There was no evidence that
harassment occurred after the District learned of the plaintiffs'
allegations. The District could not have been deemed to have
subjected the plaintiffs to the harassment.
[8] Evidence of an alleged threat by one female student to
one of the plaintiffs did not put the District on notice that
worse and ongoing harassment was being committed by male
students, or that the plaintiffs were being harassed so severely
as to be deprived of educational benefits.
[9] The District did not violate the Equal Protection Clause
by punishing the plaintiffs without punishing the male stu-
dents they accused. The plaintiffs had to prove that the defen-
dants acted in a discriminatory manner, and that the
discrimination was intentional. [10] There was no evidence of
gender animus or system-wide disparate impact in punish-
ments. The District had anti-harassment policies and a record
of enforcing them when violations were reported in a timely
manner.
[11] The District had timely notice of the plaintiffs' infrac-
tion, and no notice of misconduct by the boys. This difference
supported the conclusion that the differences in discipline
were not unconstitutionally discriminatory. Moreover, there
was no claim that the boys entered the girls' bathroom.
Uncontroverted evidence established a basis for the discipline.
_________________________________________________________________
COUNSEL
Paul B. Meadowbrook, Salem, Oregon, for the plaintiffs-
appellants.
Lisa E. Lear, Bullivant Houser Bailey, Portland, Oregon, for
the defendants-appellees.
_________________________________________________________________
OPINION
GOODWIN, Circuit Judge:
Plaintiffs, four female former high school students, appeal
the summary judgment in favor of the school district and sev-
eral named school district officials in an action for damages
under Title IX and 42 U.S.C. S 1983. We affirm the judgment
because: (1) the school district did not subject the plaintiffs to
harassment by acting with deliberate indifference to harass-
ment of which it had actual knowledge; and (2) the record
does not support the claim that the school district punished the
plaintiffs with discriminatory intent in violation of their right
to equal protection of the law.
BACKGROUND
On Tuesday, May 27, 1997, four days after the last day of
classes for seniors, Jefferson High School sponsored "senior
skip day" and transported members of the senior class to a
local state park. While at the park, the plaintiffs hid in the
stalls of the boys' bathroom. When a group of senior boys
came into the bathroom to change clothes, the plaintiffs ran
out of the stalls and allegedly threw water balloons at the
boys.
Prior to skip day, school authorities had warned that stu-
dents who behaved inappropriately on the trip would jeopar-
dize their participation in commencement exercises scheduled
for Friday, May 30. After receiving several complaints and
after interviewing several students, vice-principal David
Beyerl suspended the plaintiffs on May 28.
On the morning of May 30, the school board held a special
meeting, at which the plaintiffs were joined by parents and
counsel. The plaintiffs admitted hiding in the boys' bathroom,
but argued that they were merely retaliating for several acts
of harassment committed by the boys during the school year.
Prior to May 28, the plaintiffs had never reported any harass-
ment, and the record offers no evidence that the school district
actually knew prior to May 28 of the boys' alleged harass-
ment of the girls. The boys did not admit to any misconduct,
and the school district conducted no further investigation. The
school board concluded the special meeting by upholding the
suspension of the girls and, thus, although the plaintiffs grad-
uated and received diplomas, they were barred from the com-
mencement ceremony.
The plaintiffs filed their claims under Title IX and 42
U.S.C. S 1983, alleging that the school district was liable for
the harassment allegedly committed by the boys during the
year, and for excluding the plaintiffs from commencement.
The magistrate judge prepared findings and recommendations
upon which the district court based its judgment. The magis-
trate judge noted that the plaintiffs had raised no genuine
issue of material fact. Reviewing de novo, the district court
entered summary judgment in the defendants' favor.
STANDARD OF REVIEW
On appeal from summary judgment, this court reviews de
novo. See Washington v. Garrett, 10 F.3d 1421, 1428 (9th
Cir. 1993). To rebut the motion for summary judgment suc-
cessfully, the plaintiffs must point to some facts in the record
that demonstrate a genuine issue of material fact and, with all
reasonable inferences made in the plaintiffs' favor, could con-
vince a reasonable jury to find for the plaintiffs. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317
, 323
(1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
, 249
(1986).
DISCUSSION
I. STUDENT-STUDENT HARASSMENT
A. Title IX Claims Under Davis and Gebser
Title IX provides, with certain exceptions not at issue here,
that "[n]o 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 pro-
gram or activity receiving federal financial assistance." 20
U.S.C. S 1681(a) (1994). The parties agree that the Board is
a recipient of federal education funds for Title IX purposes.
[1] The Supreme Court recently addressed student-student
harassment claims under Title IX in Davis v. Monroe County
Board of Education, 119 S. Ct. 1661 (1999). This appeal
presents our first application of Davis to a student-student
harassment case. Aurelia Davis was a fifth grader who alleg-
edly suffered numerous instances of sexual harassment at the
hands of a single student, G.F., who ultimately pleaded guilty
to criminal sexual misconduct. See Davis, 119 S. Ct. at 1676.
The Court held that a school district "may be liable in dam-
ages under Title IX only for its own misconduct, " i.e., when
it "subjects its students to harassment." Id. at 1670, 1672.
Under that narrow standard, the Court held that plaintiff Davis
nonetheless successfully stated a claim for Fed. R. Civ. P.
12(b)(6) purposes, because Davis alleged that teachers and the
principal had subjected Davis to harassment by failing to
respond to numerous complaints.
In establishing the requisites for liability, the Davis Court
relied on its recent opinion in Gebser v. Lago Vista Indep.
School Dist.,
524 U.S. 274
(1998), in which the Court held
that a school district was not liable for teacher-student sexual
harassment unless it (1) had actual knowledge of the harass-
ment, and (2) responded to that knowledge with deliberate
indifference. In Gebser, the Court rejected the use of agency
principles to impute liability for the misconduct of teachers,
and declined to impose direct liability under what amounted
to a negligence standard. See Davis, 119 S. Ct. at 1671 (inter-
preting Gebser). In so doing, the Court made clear that Title
IX liability is not parallel to Title VII liability. See Gebser,
524 U.S. at 284
-86; Davis, 119 S. Ct. at 1671.
[2] With Gebser as its guide, the Davis Court set forth four
requirements for the imposition of school district liability
under Title IX for student-student harassment. First, a school
district's liability is limited "to circumstances wherein the
recipient exercises substantial control over both the harasser
and the context in which the known harassment occurs." Id.
at 1672.
[3] Second, a school district can be held liable in damages
only where the plaintiff suffers "sexual harassment . . . that is
so severe, pervasive, and objectively offensive that it can be
said to deprive the victims of access to the educational oppor-
tunities or benefits provided by the school." Id. at 1675.
Explaining this requirement, the Davis Court directed that
"[c]ourts . . . must bear in mind that schools are unlike the
adult workplace and that children may regularly interact in a
manner that would be unacceptable for adults." Id. Accord-
ingly, "[d]amages are not available for simple acts of teasing
and name-calling among school children . . . even where these
comments target differences in gender." Id .
[4] Third, a school district is liable in damages only where
it has "actual knowledge" of the harassment. Davis, 119 S.Ct.
at 1675. In Gebser, the Court explained the actual knowledge
requirement and announced that damages may not be recov-
ered unless an official "who at a minimum has authority to
address the alleged discrimination and to institute corrective
measures on the recipient's behalf has actual knowledge of
discrimination." Gebser,
524 U.S. at 290
.
[5] Fourth, "[i]f a funding recipient does not engage in
harassment directly, it may not be liable for damages unless
its deliberate indifference subjects its students to harassment.
That is, the deliberate indifference must, at a minimum, cause
students to undergo harassment or make them liable or vul-
nerable to it." Davis, 119 S. Ct. at 1672 (internal quotation
marks and citations omitted). The Court explained that "delib-
erate indifference" occurs "only where the recipient's
response to the harassment or lack thereof is clearly unreason-
able in light of the known circumstances." Id. at 1674.
B. Applying the Law to the Instant Case
[6] We hold that Jefferson School District is not liable for
the alleged antecedent harassment of female students by male
students. The school district was "not deliberately indifferent
to sexual harassment of which [it had] actual knowledge" in
such a way as to "cause the plaintiffs to undergo harassment
or make them liable or vulnerable to it." Id. at 1675, 1672.
[7] The plaintiffs concede that they did not report their
harassment to anyone in authority until May 28, 1997 -- after
the plaintiffs were themselves threatened with disciplinary
action. By that time, the school year had ended. There is no
evidence that any harassment occurred after the school district
learned of the plaintiffs' allegations. Thus, under Davis, the
school district cannot be deemed to have "subjected" the
plaintiffs to the harassment. Cf. Burtner v. Hiram College, 9
F. Supp.2d 852, 857 (N.D. Ohio 1998) (holding that school
was not deliberately indifferent by failing to act on report of
harassment filed two days before graduation).
[8] Moreover, the district court did not err in concluding
that evidence of an alleged threat by one female student to
one of the plaintiffs, which was purportedly witnessed by a
teacher, did not raise an issue of material fact. This incident
did not put the school district on actual notice that worse and
ongoing alleged harassment was being committed by the male
students, or that the plaintiffs were being harassed so severely
as to be deprived of educational benefits. Cf. Gebser, 524
U.S. at 279 (holding that school district's actual knowledge of
inappropriate teacher comments did not put school district on
actual notice that teacher had sexual relations with student).
II. SECTION 1983 CLAIMS OF DISPARATE
PUNISHMENT
[9] With respect to the plaintiffs'S 1983 claims, we hold
that the school district did not violate the Equal Protection
Clause of the Fourteenth Amendment by punishing the female
plaintiffs without punishing the male students accused by the
plaintiffs. To succeed on a S 1983 equal protection claim, the
plaintiffs must prove that the defendants acted in a discrimi-
natory manner and that the discrimination was intentional. See
Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471
(9th Cir. 1991). The plaintiffs' case fails this test.
[10] The record does not support a charge that the school
district acted with an impermissible motive, even if its disci-
plinary action against the plaintiffs can be viewed as harsh.
There is no direct evidence of gender animus, nor is there
even evidence of system-wide disparate impact in punish-
ments between genders. The plaintiffs concede that the school
district has enacted anti-harassment policies and has a record
of enforcing those policies when violations are reported in a
timely manner. Rather, the plaintiffs rely almost entirely on
the fact that in this one case the girls who were caught "in the
act" of inappropriate behavior were punished, while the
accused boys, whose behavior had not been previously
reported, were not punished.
[11] Important differences between the boys' and girls' sit-
uations rebut any inference of gender animus. The school dis-
trict had timely notice of the plaintiff's infraction, and no
notice of alleged misconduct by the boys. This difference in
notice supports the conclusion that the differences in disci-
pline were not unconstitutionally discriminatory. Moreover,
there is no claim that the boys entered the girls' bathroom,
thereby violating the specific directive to behave properly on
the senior trip. Uncontroverted evidence established a factual
basis for the discipline of the plaintiffs. Accordingly, the dis-
trict court correctly disposed of the S 1983 claim.
CONCLUSION
Because we hold that the plaintiffs fail to make a triable
case of Title IX or S 1983 injury, we need not address
whether Title IX claims can be brought against individual
officials, or whether those officials are protected by qualified
immunity from the plaintiffs' S 1983 claim. In this case, there
was no error in granting summary judgment.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
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